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

MALCOLM HEATH, METALEPSIS, PARAGRAPHE AND THE SCHOLIA TO HERMOGENES
3). A consequence is that there is no division (that is, no set of heads of argument)
distinctive to documentary metalepsis; each of the two questions adheres to the
division of some other issue. In this respect Hermogenes’ theory differs from that
of Marcomannus, and of at least one later Greek theorist (§1.5). The absence of
any evidence in the scholia of disagreement between them suggests (though it
does not prove) that Hermogenes and Minuciannus were at one on this point.
For Minucianus, issues are generally to be recognised from the way the
defence is formulated. For example, if a man is accused of murder the issue
depends on whether he denies the fact or seeks to justify or mitigate it. Metalepsis
(in its original narrow sense) is an exception to this general principle: the
defendant claims legal warrant for the action with regard to which he has been
charged, and it is the prosecutor’s counter-argument that determines the issue.
Zeno (to judge from 339.6-25) only recognised metalepsis determined by the
prosecutor, and Hermogenes gives no hint of any other kind. Minucianus accepted
that metalepsis is normally determined by the prosecutor (RG 7.667.8f.), but he
and Antipater thought that it could also be determined by the defendant. The
following example is given: under Athenian law rape is punishable by a fine,
under Spartan law it is a capital offence; a Spartan ambassador to Athens rapes a
young woman of citizen status, and is fined; on returning home he is prosecuted
under the Spartan law (RG 7.244.12-20). One might have expected the defendant
to invoke the double jeopardy rule; but the following analysis (244.20-245.4)
suggests that the defendant’s paragraphe is based on place, and this is confirmed
by Marcellinus, who cites the example without attribution (RG 4.292.29-293.6).
Thus the defendant invokes a circumstance of his act that places it outside Spartan
jurisdiction. This is completely different from documentary metalepsis, in which
the paragraphe is based on circumstances of the case; Marcellinus makes it clear
that the example is an instance of non-documentary metalepsis. But it reverses the
normal pattern for non-documentary metalepsis, in which the prosecutor invokes a
circumstance of the act that places it outside the scope of the law by which the
defendant claims his act is warranted. The dominant opinion among later theorists
seems not to have followed Minucianus’ lead on this point. 11
1.4 Metalepsis in third-century technography
Sulpicius indicates that the proper position of metalepsis within the system of
issues was difficult to determine (338.31-4). A variety of solutions to this problem
can be found in the theorists. Zeno placed metalepsis between definition and the
practical issue, before the counterpositions and counterplea. Minucianus placed
metalepsis after counterplea, because of the natural resemblance between them
(Nilus fol. 155r). 12 Hermogenes places metalepsis last in the introductory survey
of the issues, but in the body of the text it comes after the practical issue, at the
11 For the association of documentary metalepsis with the defendant, non-documentary metalepsis
with the prosecutor see Syr. 153.1-3; RG 4.288.3-8, 775.16-18. Sopater’s view (RG 5.196.8-16)
that the prosecutor determines documentary metalepsis kat¦ ¢x…wsin is complicated by the
ambiguity as to whether the petitioner (who speaks first) or the opponent is the ‘prosecutor’ in
such cases: see Heath (1995) 141.
12 Gloeckner (1901) 33: see Appendix 7. For metalepsis and counterplea see n.7 above.
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