Metalepsis, paragraphe and the scholia to Hermogenes - Leeds ...

MALCOLM HEATH, METALEPSIS, PARAGRAPHE AND THE SCHOLIA TO HERMOGENES
follows this extended version of the theory, identifying Marcommanus as the
immediate source for his account of paragraphe (338.31-339.1, 341.27-9). 8
In Zeno’s metalepsis the legal justification of the act on which the charge is
based is challenged on circumstantial grounds; in paragraphe it is the prosecution
itself that is challenged on circumstantial grounds (339.3-6). Sulpicius mentions
that Zeno included such cases under letter and intent (339.1f.); so the question
raised by the challenge to the prosecution is a legal one. It follows that the
starting-point for the defence in paragraphe must be an explicit legal provision, as
it is in metalepsis in Zeno’s sense. The defence might invoke, for example, a
statute of limitations; the circumstantial basis of the challenge would then be time.
Similarly, if the law invoked by the defence defines who may prosecute, or which
court has jurisdiction, or a procedural rule, the circumstances of person, place and
manner would provide the basis for the challenge to the prosecution.
In Sulpicius’ example (340.14-341.30) the legal provision on which the
paragraphe is based is the rule of double jeopardy. For example: a poor man
returns from an embassy to find that his son has been murdered, and that his two
rich enemies have unsuccessfully prosecuted each other for the murder; he wishes
to charge them both, but they enter a paragraphe under the principle of double
jeopardy (340.14-341.28). Although Sulpicius does not state this explicitly, the
circumstantial basis in such a case is apparently act: one cannot be tried twice for
the same act (de eadem re 340.27). That reveals a potential instability arising from
the extension of metalepsis. The original form of metalepsis makes a contrast
between act and circumstance, so that the act of (for example) killing the
adulterous wife is accepted as such, but the person, place, time, manner or reason
of the killing is faulted. But in paragraphe act is included among the
circumstances in respect of which the prosecution might be faulted. Double
jeopardy paragraphe seems in this respect to stand apart from the other kinds of
paragraphe.
There is, in addition, a more significant structural anomaly that results from
the expansion of metalepsis. Issue-theory classifies cases according to the
underlying structure of the dispute, but that basis of classification is abandoned
once metalepsis and paragraphe are brought under a single issue. Although
metalepsis and paragraphe both start from an explicit legal provision, the
subsequent disputes develop along different lines. In the original category of
metalepsis the argument turns on substantive points about the act and its
circumstances. In paragraphe, by contrast, the argument is about the
interpretation or application of the law on which the challenge to the validity of
the prosecution is based. Zeno’s classification of such cases under the legal issues
(such as letter and intent) seems logical. Alternatively, it might be thought that
paragraphe requires a strategy of argument different from that of any of the legal
issues; Marcomannus’ treatment, as reported by Sulpicius, does give paragraphe a
8 Marcomannus is also listed as one of the sources used by Julius Victor; he is named by
Fortunatianus (98.26 Halm) and Victorinus (173.34f., 299.15 Halm). There is no clear criterion for
dating him independently of Sulpicius, who I would not wish to place much if at all beyond the
end of the second century, since Zeno’s work seems to have lost currency rapidly (it was
apparently unavailable to Porphyry: Heath (2003a) 152f.).
4