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Dossier : Aitia

Dossier : Aitia, causalité juridique, causalité philosophique

Aition and AITIA in the theory of Status

Lucia Calboli Montefusco

Résumé

À l’intérieur de la doctrine des états des causes (status), on rencontre plusieurs fois les mots αἴτιον et αἰτία. Leur emploi, toutefois, n’est pas toujours cohérent. On doit en effet distinguer la « raison » qui est la justification d’un procès de la « raison » qui est la justification d’une action. Les Latins se servent à ce propos de deux expressions différentes : dans le premier cas, ils parlent de « causa iudicii », dans le deuxième de « causa facti ». On cherchera donc à examiner les passages de textes grecs et latins où ces mots apparaissent pour y mettre en évidence les difficultés d’interprétation.

Texte intégral

  • 1 Alternative Latin translation of the word στάσις was constitutio, used by the author of the Rhetori (...)
  • 2 I gave an overview of this doctrine and of the relevant literature many years ago (Calboli Montefus (...)
  • 3 Cf. the witness of Quintilian who, before starting his discussion of this topic, says that nonnulli (...)
  • 4 The first difficulty is the relationship of the status with the quaestio. The second and major diff (...)

1The theory of the status (στάσεις)1 was the core of the inventio, already elaborated by the philosophers Peripatetic and Academic, developed in the Hellenistic period above all by Hermagoras of Temnos and from then onwards always taken into account, modified and enriched by Latin and Greek rhetoricians.2 The survived rhetorical handbooks are often witnesses of the disagreement of their authors about single points as, e.g., the field of application of the doctrine itself3 or the rational process which, step by step, allowed the understanding of which was the status (στάσις) and which was the iudicatio (κρινόμενον) for each case.4 It is impossible, now, to present all the details and the difficulties of this doctrine. I will therefore only focus on the few situations in which the words αἴτιον and αἰτία (or their Latin translations) have specific technical meanings.

  • 5 Cic. Inv. 1.18.
  • 6 In this case the defendant does not deny being the doer of a reproachable action, but he maintains (...)
  • 7 The question is extremely difficult, first of all because the comparison between the Latin and the (...)
  • 8 Even the date of Hermagors’floruit is uncertain. He was presumably teacher of rhetoric around the h (...)
  • 9 In the conjectural cases there are only the first three elements of this sequence because the defen (...)

2Let me start by taking into account the judicial genre of rhetoric and the different roles played by the two parties in the process which leads to the iudicatio. First of all there was an accusation made by the plaintiff, a reply to the accusation by the defendant and the consequent question whose formulation represented the status of the controversy, e.g.: accusation: “you were not justified in doing it” (non iure fecisti), reply to the accusation: “I was justified in doing it” (iure feci), question: “was he justified in doing it?” (iurene fecerit?).5 In this case, according to the question, the status was called qualitas (ποιότης).6 After this first step there was a second opportunity for the plaintiff and for the defendant to express their reasons and finally the formulation of the iudicatio (κρινόμενον), i.e. the point for the decision of the judge. Of this phase of the process, however, we find in the handbooks two different versions and it is almost impossible to say which one was the original.7 Unfortunately, besides Aristotle’s Rhetoric and the Rhetoric to Alexander which, anyway, do not deal with this question, we do not have at our disposal handbooks older than the Rhetorica ad Herennium and Cicero’s De Inventione; even the reconstruction of the Τέχνη of Hermagoras, apparently so influential in this regard, is only tentative and controversial.8 Let me take into account the sequence as it is described by Cicero who devotes the most part of the second book of his De inventione to analyze the examples of each constitutio: intentio (κατάφασις, accusation) – depulsio (ἀπόφασις, reply to the accusation) – quaestio (ζήτημα, question), i.e. the identification of the constitutio (alternative word for status) – ratio (the reason for the fact given by the defendant) – infirmatio rationis (denial of this reason by the prosecutor) – iudicatio (question to be judged).9 Only in three very late texts, the Ars rhetorica of Consultus Fortunatianus (67, 1-13 Calb. Mont.), the fragment De rhetorica of Aurelius Augustinus (143, 25-145,20 Halm) and the anonymous Excerpta rhetorica (585, 9-16 Halm), in the second dialog is plaintiff / defendant reversed: first the plaintiff confirms his accusation and only then does the defendant explain, for his defence, the reason for his deed.

3The best presentation is that of Augustinus. Referring to the three moments of the second part of the process, Augustinus quotes Hermagoras: 144, 24 ff. Halm Causam Hermagoras αἴτιον vocat, συνέχον continens, de quo conten ditur κρινόμενον. Then he adds that the causa is that without which the controversy cannot come into being: Est igitur causa, quae nisi praecesserit, controversia fieri non potest. This last statement is particularly interesting: αἴτιον, as he explains a few lines later, has actually the meaning of causa iudicii, i.e. the reason put forward by the plaintiff to bring to trial the person who did the action. Let me quote one of his examples: “A general killed a soldier who had sworn that he would desert and is charged with murder” (144, 32 ff. Halm Militem, qui iuraverat se deserturum, imperator occidit et reus fit caedis). At this point Augustinus explains that in this case the αἴτιον, i.e. the reason for the legal action against the general, is that he killed the soldier because otherwise there was no reason to charge him with murder: Hic enim αἴτιον est, id est causa iudicii, quod occidit; neque enim fieret reus, nisi occidisset (144, 32 ff.). To prove the truth of this meaning of αἴτιον we can quote, on the other hand, the analogous passage of Fortunatianus’ handbook where αἴτιον is defined more or less in the same way, namely as causativum litis (67, 8 ff. Calb. Mont. Quid est aetion? Causativum litis, propter quod res in iudicium devocatur) or the example quoted by the anonymous author of the Excerpta Rhetorica: 585, 10 ff. Halm accusatur Milo quod occiderit Clodium. Causa est quod occiderit. As the author himself explains, causa is indeed the Latin word for αἴτιον (585, 9 ff. Halm Omnis controversia habet in se aetion, synechon, crinomenon. Aetion est causa). Among the Greek rhetoricians who deal with this topic we can mention Sopatros who twice says that the αἴτιον, i.e. ‘the voice of the prosecutor’ derives its name from the fact that it reveals the αἰτία of the trial: RhG IV 140, 1 ff. Walz αἴτιον μέν ἐστι τοῦ κατηγόρου φωνή, καὶ οὕτω λέγεται διὰ τὸ τὴν αἰτίαν τῆς κρίσεως μηνύειν (cf. Sopat. RhG V 57, 25 ff. Walz).

  • 10 Fortun. 71, 20 ff. Calb. Mont. Quid est ductus? Quo modo tota causa agenda sit; Mart. Cap. 470, p. (...)

4We should not forget, moreover, that the causativum litis was an element of special importance because it was considered as the first step of the subtle intellectual process which allows the speaker to adapt his whole speech to the subject matter under discussion in order to attain his aim. The approach of the orator will actually be different according to the time to which the causativum litis refers. Only in two late Latin handbooks we find the details of this matter, Fortunatianus’ Ars Rhetorica (71,20-75,21 Calb. Mont.) and the chapter De Rhetorica in Martianus Capella’s encyclopedia De nuptiis Philologiae et Mercurii (470-472, p. 165, 3-166, 2 Willis). Both authors refer to the ductus of the speech, i.e. to the way to plead it according to the situation.10 When the reason that leads to the trial (causativum litis) belongs in the past, for example, the orator can only plead the case as set forth. Fortunatianus quotes the case of a man who is accused of murder because he was found near somebody who had just been killed. Here – he says – the causativum litis is the fact that this man was found in those particular circumstances and the orator can only plead in favor or against him. In either case what he says is what he really means. The ductus of his speech is here, consequently, simplex (Fortun. 73, 1 ff. Calb. Mont.). The ductus would be different, on the other hand, if the causativum litis belonged to the present or to the future as, e.g., “ in the case of a father who calls to trial his son because he has no friends and claims to disinherit him for this reason” (Fortun. 73, 5 ff. Calb. Mont.): here the causativum litis (having no friends) belongs to the present and leads to the use of a ductus subtilis because – the author explains – the father does not really want to disinherit his son: he is only trying to persuade him to make some friends. This example, certainly born in the school milieu, is paradigmatic, as we will see, of several other situations.

  • 11 I dealt in detail with this topic in my book on the status doctrine: cf. Calboli Montefusco 1979, p (...)
  • 12 Cf. Sopat. RhG V 61, 28 f.; 69, 30 f. Walz.

5Even more interesting, however, is the relationship that we can establish between the function of the αἴτιον (causativum litis) and the part of the στάσεις theory devoted to explain why some issues cannot be considered as στάσεις but only as ἀσύστατα.11 Indeed, according to the case, if deficient in its formulation, the question could not be discussed. Grillius, in his commentary to Cicero’s De Inventione, explains when this was the case (p. 51 Jakobi): Controversia autem fit, si habuerit quod accusator obiciat, quod defensor purget, quod iudex iudicet; unum istorum si defuerit, non stat controversia et erit thema asystaton.12 Consistently, he distinguishes questions deficient a parte accusatoris, a parte defensoris, a parte iudicis (p. 51 ff. Jakobi). Analogous, on the other hand, is the distinction that we find in Sopatros when he says that the absence either of the αἴτιον or of the συνέχον or of the κρινόμενον makes the case ἀσύστατον (Sopat. RhG V 57, 22 ff. Walz): γίνεται δὲ οὕτως τά τε συνεστηκότα καὶ τὰ ἀσύστατα · συνέστηκε δὲ ἐκ τριῶν τούτων, αἰτίου, συνέχοντος, κρινομένου ·Τοῖς οὖν συνεστηκόσι τῶν ζητημάτων ἀνάγκη τὰ τρία εἶναι, ἓν γὰρ ὁτιοῦν ἐλλείψαν ἀσύστατον ποιεῖ τὸ ζήτημα; accordingly he mentions (RhG V 70, 2-4 Walz) the possibility for a case to be ἀσύστατον either παρὰ τὸ αἴτιον or παρὰ τὸ συνέχον or παρὰ τὸ κρινόμενον.

  • 13 Cf. Grill. p. 57 Jakobi. In the development of this doctrine not only is the number of the ἀσύστατα(...)
  • 14 For more quotations cf. Calboli Montefusco 1986, p. 15.

6Among the cases deficient because of a defect in the accusation, there was the ἀσύστατον called ellipusa (Fortun. 68, 2 Calb. Mont.) or ἀπερίστατον (Hermog. 33, 14 Rabe; Grill. p. 6; 55 Jakobi) because lacking of a περίστασις or, if we want to use the corresponding Latin word, of a circumstantia. I will come back to the circumstantiae (περιστάσεις) and their function in a moment. For now it is enough to note that Fortunatianus, who says that this ἀσύστατον happens cum aliquid deest ex circumstantiis quod faciat quaestionem, counts it as first in the list of the four ἀσύστατα taken into account by Hermagoras (67, 18 ff. Calb. Mont.).13 The example that he uses is the faulty version of the example quoted above, namely the case of a son who has been disinherited by his father without any reason (causa); once added this circumstantia – says Fortunatianus – the case would not be ἀσύστατον anymore: indeed, if we say that the reason is that this son is lusty or that he has no friends or something alike, the case would be a status (Fortun. 68, 2 ff. Calb. Mont. ut si aliquis abdicatur nec abdicationis ulla sit causa; nam si ponamus, quod luxuriosus sit vel quod amicos non habeat aut aliquid huiuscemodi, materia consistit). Noteworthy, moreover, is the fact that the same example is quoted by several other ancient rhetoricians and always explained focusing on the lack of a reason that justifies the legal action. Grillius, e.g., is very explicit (p. 6 Jakobi): cum accusator crimen tantum intendit, criminum non habet firmamenta, ut illud est: ‘Pater filium vult abdicare sine causa’; or p. 55: in quo nihil habeat, quod dicat, qui accusat, veluti quidam abdicat filium, ex lege cum nihil habeat, filio quod obiciat, unde mereatur abdicari; cf. Exc. Rhet. 586, 24 ff. Halm. From the Greek authors, not only we can quote Hermogenes (33, 14 f. Rabe… ἐποὐδεμιᾷ αἰτίᾳ), but also his commentators, e.g., Syrianus (RhG IV 164,13 ff. Walz) who says that the name itself ἀπερίστατον is due to the lack of an evident αἰτία for the prosecution: ἀπερίστατον οὖν διὰ τοῦτο καλεῖ τὸ μηδεμίαν πρoφανῆ αἰτίαν τῆς κατηγορίας ἔχον; cf. Anonym. RhG VII 152, 20 ff. Walz.14 Even if Augustinus (146, 4 ff. Halm) and Iulius Victor (3, 22 ff. Giomini-Celentano) certainly hint to this ἀσύστατον when they mention the situation of a case ἀσύστατον because lacking of whatever circumstantia, it seems therefore to be clear from the example at question that what is missing here not only is the αἰτία or causa, but that this αἰτία or causa, being the reason that justifies the prosecution, is nothing else than the causa iudicii or the causativum litis mentioned by the Latin authors to explain the meaning of the αἴτιον. This is certainly confirmed not only by the fact that Fortunatianus, as we have already seen, quotes the same example, put in its correct shape, to stress the importance of the causativum litis for the choice of the suitable ductus, but also by the fact that Sopatros does not hesitate to define this case as ἀσύστατον περὶ τὸ αἴτιον (RhG IV 164, 24 Walz). In my opinion, moreover, the best proof that this causa is the causa iudicii is given by Augustinus himself who, to explain what Hermagoras means by the word αἴτιον, quotes the same example and says that the lack of a causa for this legal action would make it impossible to consider the case as a controversia whereas this would be possible as soon as the causa is added: “A son has been disinherited by his father. This is no controversy because no reason is given why he was disinherited by his father. So let us add the reason and immediately a controversy is effected: he swore an oath that he would not get married and was disinherited. What he swore was made the αἴτιον, i.e. the cause or reason why he deserved to be disowned” (144, 26 ff. Halm “abdicatur a patre filius” controversia idcirco non est, quia nulla cur abdicaretur a patre causa praecessit. Denique addamus causam et statim controversia effecta est: iuravit se non ducturum uxorem et abdicatur”. Quod iuravit factum est αἴτιον, id est causa, cur abdicationem mereretur).

  • 15 Cf. also the comments of Adamietz 1966, p. 211 ff. Interestingly enough, Heath (1994a, p. 119, n. 1 (...)

7To this αἴτιον, the instrument of the prosecution and reason for the plaintiff for bringing the question to trial, the defendant tried to oppose the argument containing his defense. According to Augustinus (144,30 ff. Halm), Hermagoras called this part either συνέχον (continens), because in it is contained the whole defense, or αἴτιον αἰτίου as if it were the reason for the reason for the accusation, causa causae. Let me quote his comments to the example mentioned above of the imperator who, accused of murder, tried to justify himself opposing to the αἴτιον occidisti hominem, i.e. to the reason for being prosecuted, the reason for his deed, namely that he killed the soldier because he swore he would desert: ‘συνέχον, i.e. the continens, – says Augustinus – is the reason which the general alleges for having killed, namely the oath of the soldier in which he swore that he would desert’ (συνέχον est, id est continens, id propter quod occidisse se dixit, ius iurandum scilicet militis, qui deserturum se esse iuraverat). To explain the alternative denomination, αἴτιον αἰτίου, Augustinus continues (145, 5 ff. Halm): Nam quem ad modum reatus causa est quod militem occidit, ita occidendi causa, quod miles deserturum se esse iuravit. In short, therefore, considering the συνέχον as αἴτιον αἰτίου means considering the oath of the soldier as the reason (αἴτιον, causa) for the murder which is the reason (αἴτιον, causa) for the prosecution of the imperator. In my opinion, however, there is a double difficulty in this alternative denomination: first, the συνέχον (ius iurandum... militis), i.e. the occidendi causa, can only come after and not before the αἴτιον, i.e. the reatus [sc. iudicii ] causa (quod militem occidit); second, while the συνέχον represents the περίστασις called αἰτία, which is supposed to explain why something happened, the αἴτιον or causa iudicii is an objective fact that the prosecutor exploits as reason to call somebody to trial.15

  • 16 Cf. also Cic. Part. Or. 102 ff.; Top. 95; Rhet. Her. 1.26; Quint. Inst. 3.11.1 ff.; Iul. Vict. 5, 9 (...)
  • 17 In favor to the Hermagorean paternity of this sequence was already Adamiez 1960, p. 100 ff.; 1966: (...)
  • 18 Differently from the αἴτιον αἰτίου of Augustinus’ text, this expression seems here to be correct be (...)

8So far the sequence seems to be clear. The question becomes much more complicated, however, if we want to find an overlap with the model first witnessed in Cicero’s De Inventione, where it is the defendant who first brings the ratio, i.e. the reason for his deed and only afterwards it is the turn of the prosecutor who with an infirmatio rationis tries to invalidate this ratio.16 Among several other questions as, e.g., the Hermagorean or not Hermagorean paternity of this model,17 what is particularly interesting for us is the fact that in this sequence there is no room for an αἴτιον interpreted as causa iudicii or causativum litis. Nevertheless Quintilian mentions it as part of the sequence of steps that lead to the iudicatio. In the eleventh chapter of the third book of his Institutio Oratoria, dealing with this matter, Quintilian (Inst. 3.11.1-6) reminds of the need to understand first of all what is the quaestio – the source of the different issues. Then he defines the ratio as “the method by which an admitted act is defended” and quotes the example that was traditionally used to illustrate that part of the qualitas (ποιότης) which was called relatio criminis (ἀντέγκλημα): “Orestes killed his mother. This is agreed. He says he did it justifiably. The status will be qualitas, the quaestio ‘whether he did it justifiably’, the ratio that Clytemnestra killed her husband, who was Orestes’ father”. At this point Quintilian not only adds that this ratio, i.e. Orestes’ defense, “is called αἴτιον” (hoc αἴτιον dicitur), but also mentions the lack of agreement among the authors of rhetorical handbooks about the meaning of the words αἴτιον and αἰτία: some of them – he says – consider αἴτιον as “the reason why the case came to trial” (propter quam iudicium constitutum est), i.e. the killing of Clytemnestra and αἰτία as “the cause alleged by the defense” (qua factum defenditur). i.e. the killing of Agamemnon; some others reverse the meanings and say that αἴτιον is the reason for the fact (causa facti) and αἰτία is the reason for the trial (causa iudicii); some others, finally, just use the same name. After these remarks, moreover, Quintilian calls attention to a further step backwards: Clytemnestra killed Agamemnon because he had killed their daughter and brought home a captive as his mistress. This – Quintilian says – is the reason for the reason alleged by Orestes, which therefore could be called causa ex causa or αἴτιον ἐξ αἰτίου.18 If we sum up, therefore, we have a first murder (the daughter killed by Agamemnon) that is reason (αἴτιον) for a second murder (Agamemnon killed by Clytemnestra) that is reason (αἴτιον, ratio) for a third murder (Clytemnestra killed by Orestes) that is the reason (αἴτιον) for the trial itself, i.e. for the prosecution of Orestes.

  • 19 As to the relationship μετάθεσις τῆς αἰτίας / conjectural question, cf. Iul. Vict. 21, 21 ff. Giom.(...)
  • 20 Hermog. 49, 7 ff. Rabe “Transposition of cause arises in relation to the sequence of events. That i (...)
  • 21 Cf. Maxim. Planud. RhG V 279, 30 ff. Walz; Anonym. RhG. VII 299, 7 ff.; 315, 3 ff. Walz; Syrian. II (...)
  • 22 Porphyrius RhG IV 397, 8 ff. Walz (= Fr. 14 a Matthes). Recently this witness has been discussed by (...)
  • 23 Cf. Calboli Montefusco 2007, p. 168.

9Even if referred to the reasons of the prosecution and of the defense the words αἴτιον and αἰτία have been often considered more or less as synonymous, there is a case where αἰτία is never substituted by αἴτιον: it is the wording μετάθεσις τῆς αἰτίας (transposition of the reason). First mentioned by Hermogenes (49, 7 ff. Rabe) within the topic of a conjectural question, στοχασμός,19 the μετάθεσις τῆς αἰτίας was supposed to be an instrument of defense when the charge of the prosecutor focused on words, acts or feelings.20 Let me quote one of his examples: “A man is apprehended burying a recently slain corpse in a remote place, and is charged with homicide. He will run through a thesis, claiming that it is honourable to inter the unburied” (49, 15 ff. Rabe). At question here is an action, burying a recently killed corpse in a remote place, which can be interpreted by the prosecutor as a very plausible sign of homicide. It is therefore to contrast this interpretation of the sign that the defendant needs to use the μετάθεσις τῆς αἰτίας, i.e. he needs to let appear his action due to a different reason: saying that burying unburied corpses is a sign of pietas he lets appear his act not only innocent, but even praiseworthy and what could appear reason (αἰτία) for a guilty action, the homicide, becomes reason (αἰτία) for a good one, the pietas towards an unburied corpse.21 Hermogenes refers to this μετάθεσις τῆς αἰτίας as to the χρῶμα, i.e. the gloss given to the action (50, 10 ff. Rabe). Probably because of that we find in some of his commentators a significant misunderstanding. Porphyrius, referring to Hermogenes’ μετάθεσις τῆς αἰτίας, says that the followers of Hermagoras called it χρῶμα because it is useful to colour the refutation of the sequence of the events (ἀπἀρχῆς ἄχρι τέλους) made by the prosecutor. This refutation – he continues – could happen by means of the four kinds of the ἀντίθεσις (qualitas adsumptiva), i.e. ἀντίστασις (comparatio), μετάστασις (remotio), ἀντέγκλημα (relatio) and συγγνώμη (purgatio).22 Indeed all of them are described in the rhetorical handbooks as cases happening when the defendant cannot deny having done the action with which he has been charged with but, transposing the guilt of this action to another person or to something else, he pretends to have done it rightfully. Even if also in these cases what is being discussed is the reason for the action done, the situation is completely different. As the Latin rhetorician Martianus Capella remarks, all these cases belong to the qualitas adsumptiva because the defendant, unable to defend the qualitas facti, i.e. the rightfulness of his action, is obliged to turn to the qualitas causae, i.e. the rightfulness of the reason for his action (Mart. Cap. 158, 10 ff. Willis: Assumptiva, quae, cum in facto ipso nihil probabile reperiat, confugit ad ipsam causam eamque iustam… allegat). Just to give an example, I can remind of the charge with murder made to Orestes and of the reason that he puts forward to justify his action. Interpreting in this way the Hermogenean μετάθεσις τῆς αἰτίας, however, is not correct. Indeed we should not forget that the μετάθεσις τῆς αἰτίας was taken into account by Hermogenes as instrument of defense inside the topic of a conjectural case and that at question was the transposition of the reason for an action supposed by the prosecutor to be sign of a denied crime: in other words, the defendant, who denies being the author of the crime, confirms his innocence giving to the action interpreted by the prosecutor as sign of guilt a noble reason instead of a guilty one. In the case of the qualitas adsumptiva, by contrast, what is transposed is the guilt itself: Orestes, who cannot deny the murder of Clytemnestra, claims to have done it rightfully because she had killed his father: she, therefore, is guilty.23

  • 24 Cf. their description, e.g., in Fortun. 107, 2-11,3 Calb. Mont.; Aug. 141, 15 ff. Halm; Victorin. 2 (...)
  • 25 Cf., e.g., the relevance of persona and negotium for the argumentative topic as dealt with in Cic. (...)
  • 26 Cf. Aug. 142, 6 ff. Halm Cur significat causam faciendi vel dicendi vel cogitandi, rem ut mea fert (...)

10At this point, let me draw attention to the last sentence of Hermogenes’ example quoted above; in that case, to take advantage from the μετάθεσις τῆς αἰτίας the defendant – Hermogenes says – ‘will run through a thesis, claiming that it is honourable to inter the unburied’. Shaping the αἰτία of his action as a general question, in other words, the defendant is able to exploit this περίστασις avoiding any reference to his specific situation. As well known, the presence or the absence of the details (circumstantiae or περιστάσεις)24 needed to specify a case, e.g., who was the doer of an action, what has happened, when, where, why, how etc, was actually the difference between theseis and hypotheseis. If among these the person doing or suffering a certain action (persona, πρόσωπον) and the action itself (negotium, πρᾶγμα) were undoubtedly the most important,25 very relevant was also the role of the causa, αἰτία, because, tightly linked with the negotium, it was the reason for its happening.26 Cicero in Inv. 1.37 counts it as one of the continentia cum ipso negotio, i.e. of “those things which seem always connected with it and which cannot be separated from it”. According to its αἰτία, therefore, a deed could appear good or evil. In Inv. 2.17 ff., moreover, Cicero deals in detail with the loci useful to the plaintiff or to the defendant in a conjectural case and considers the causa the first of them, because – as he explains – “no one can be convinced that a deed has been done unless some reason is given why it was done” (Inv. 2.19). This reason, moreover, can be an impulsio or a ratiocinatio. In the first case it pushes to act under the impulse of different feelings, as love, anger, grief, etc.; in the second it pushes to act after a reasoned thinking. In this last case things seem to have been avoided or sought for a precise reason, e.g. “because of friendship, to punish an enemy, or because of fear, glory or money, or… to retain, increase, acquire some advantage, or, on the other hand, to throw off, lessen or avoid some disadvantage” (Inv. 2.18). It is evident that, in the case of our example, the αἰτία that the prosecutor and the defendant want to exploit refer to a ratiocinatio, i.e. to an act deliberately chosen; otherwise the transposition of the reason (μετάθεσις τῆς αἰτίας) would be impossible. What in my opinion is here particularly interesting, moreover, is a detail not yet well highlighted, namely the fact that here, shaping as a thesis the αἰτία of his action, the defendant gives to his ratiocinatio the argumentative power of a locus communis, more precisely, as Cicero explains a few paragraphs later (Inv. 2.48), the power of the amplificatio of a res certa: nobody, actually, could deny that burying a dead person is an honourable action.

11This short overview can only be incomplete, but I hope to have explained at least what the difference is between the reason to call somebody to trial and the reason that, qua περίστασις, belongs to the topic of the argumentation. Before concluding, however, let me go back to the example of the father who wants to disinherit his son. I need to share a doubt: given that the αἰτία or causa is the περίστασις that specifies why somebody did or suffered a given action, I am really uneasy when I read in the ancient texts why one of the ἀσύστατα was called ἀπερίστατον. Most of their authors, as we have seen, say that the περίστασις missing there is the αἰτία, but from the only example at our disposal we must conclude that the αἰτία to which they refer is not at all the περίστασις that specifies the reason for what has happened; rather it is the reason for the legal action and has the meaning of causa iudicii. Even if Quintilian witnesses a certain exchange in the use of the two words αἴτιον and αἰτία in this regard, the rhetoricians were still well aware of the difference between the causa facti and the causa iudicii. How, then, could they consider as περίστασις what was an evident causa iudicii, i.e. the lack of any reason for the father to disinherit his son? Why did modern scholars always neglect this so important detail? Or it’s me who am wrong?

Bibliographie

BIBLIOGRAPHY

Adamietz 1960: J. Adamietz, Ciceros de inventione und die Rhetorica ad Herennium, Marburg, 1960.

Adamietz 1966: J. Adamietz, M. F. Quintiliani Institutionis Oratoriae Liber III, München, 1966.

Barwick 1961: K. Barwick, “Augustins Schrift De Rhetorica und Hermagoras von Temnos”, Philologus 105, 1961, p. 97–110.

Barwick 1964: K. Barwick, “Zur Erklärung und Geschichte der Staseislehre des Hermagoras von Temnos”, Philologus 108, 1964, p. 80–101.

Barwick 1965a: K. Barwick, “Probleme in de Rhet. LL. Ciceros und des sog. Auctor ad Herennium”, Philologus 109, 1965, p. 57–74.

Barwick 1965b: K. Barwick, “Zur Rekonstruktion der Rhetorik des Hermagoras von Temnos”, Philologus 109, 1965, p. 186–218.

Braet 1987: A.C. Braet, “The Classical Doctrine of status and the Rhetorical Theory of Argumentation”, Philosophy and Rhetoric 20, 1987, p. 79–93.

Calboli Montefusco 1972: L. Calboli Montefusco, “La dottrina del κρινόμενον”, Athenaeum n. s., 50, 1972, p. 276–293.

Calboli Montefusco 1979: L. Calboli Montefusco, Consulti Fortunatiani Ars Rhetorica, Introduzione, Edizione critica, Traduzione italiana e Commento a cura di L.C.M., Bologna, 1979.

Calboli Montefusco 1986: L. Calboli Montefusco, La dottrina degli status nella retorica greca e romana, Hildesheim-Zürich-New York, 1986.

Calboli Montefusco 2003: L. Calboli Montefusco, “Ductus and color: the right way to compose a suitable speech”, Rhetorica 21, 2003, p. 113–131.

Calboli Montefusco 2007: L. Calboli Montefusco, “La funzione strategica dei colores nella pratica declamatoria”, in L. Calboli Montefusco (ed.), Papers on Rhetoric VIII, Roma, 2007, p. 157–177.

Heath 1994a: M. Heath, “The substructure of stasis-theory from Hermagoras to Hermogenes”, CQ 44, 1994, p. 114–129.

Heath 1994b: M. Heath, “Zeno the rhetor and the thirteen staseis”, Eranos 92, 1994, p. 17–22.

Heath 1995: M. Heath, Hermogenes, On Issues: Strategies of Argument, Oxford, 1995.

Heath 2002a: M. Heath, “Porphyry’s rhetoric: texts and translations”, Leeds International Classical Studies 1.5, 2002, p. 1–41.

Heath 2002b: M. Heath, “Hermagoras: Transmission and Attribution”, Philologus 146, 2002, p. 287–298.

Heath 2003: M. Heath, “Porphyry’s Rhetoric”, CQ 53, 2003, p. 141–166.

Matthes 1958: D. Matthes, “Hermagoras von Temnos 1904-1955”, Lustrum 3, 1958, p. 58–214; 262–278.

Matthes 1962: D. Matthes, Hermagorae Temnitae Testimonia et Fragmenta, adiunctis et Hermagorae cuiusdam discipuli Theodorei Gadarei et Hermagorae Minoris Fragmentis, Leipzig, 1962.

Piderit 1839: C.W. Piderit, De Hermagora rhetore, Hersfeld, 1839.

Thiele 1893: G. Thiele, Hermagoras. Ein Beitrag zur Geschhichte der Rhetorik, Strasbourg, 1893.

Woerther 2011: F. Woerther, “L’attribution de la notion de χρῶμα (couleur) aux ‘hermagoréens’, Porphyre, Comm. In Hermog. Stat. [Py, fol. 125v, 11-16 = RGW 4, 397, 8-15]”, Rheinisches Museum 154, 2011, p. 206–231.

Woerther 2012a: F. Woerther, Hermagoras. Fragments et Témoignages, Paris, 2012.

Woerther 2012b: F. Woerther, “Hermagoras et la doctrine des ἀσύστατα (questions sans consistance)”, Mnemosyne 65, 2012, p. 179–202.

Notes

1 Alternative Latin translation of the word στάσις was constitutio, used by the author of the Rhetorica ad Herennium, by Cicero in his De Inventione and by the late authors depending upon Cicero, as his commentators (Victorinus and Grillius) or, e.g., Cassiodorus, Isidorus and Martianus Capella.

2 I gave an overview of this doctrine and of the relevant literature many years ago (Calboli Montefusco 1986). The discussion of this topic has been afterwards updated in several others studies, as, among others, those of Braet (1987), Heath (1994a; 1994b; 1995; 2002b), Woerther (2012a).

3 Cf. the witness of Quintilian who, before starting his discussion of this topic, says that nonnulli ad iudiciales tantum pertinere materias putaverunt, quorum inscitiam, cum omnia tria genera fuero executus, res ipsa deprendet (Inst. 3.6.1). The question was even more complicated because by the philosophers Peripatetic and Academic the doctrine of the status was referred also to the theseis (cf. Cic. De Orat. 2.104; 3.109 ff.): for more details cf. Calboli Montefusco 1986, p. 29 ff.

4 The first difficulty is the relationship of the status with the quaestio. The second and major difficulty is the correct understanding of the role of the accusation and defense in the whole process. The question, debated by the ancient authors and by modern scholars, is too complex to be taken into account here: I dealt with it twice (Calboli Montefusco 1972, p. 276 ff. and 1986, p. 3 ff.). Today the last contribution to this discussion is offered by Woerther (2012a) who in her comments to the doctrine of Hermagoras also quotes more recent literature.

5 Cic. Inv. 1.18.

6 In this case the defendant does not deny being the doer of a reproachable action, but he maintains to have done it according to his right. In Hermagoras’ elaboration of the doctrine the qualitas (ποιότης) was the most complex status because of the variety of justifications alleged by the defendant: cf., e.g., the diagram and an overview of the different situations in Calboli Montefusco 1986, p. 35; 93 ff..

7 The question is extremely difficult, first of all because the comparison between the Latin and the Greek words used by the authors to indicate this second stage of the process leading to the iudicatio causes a lot of trouble. Many years ago (Calboli Montefusco 1972, p. 283 ff.) I considered the witnesses of the ancient authors and quoted the literature available at that time. Today we need to consider also the more recent and very detailed contribution of Heath 1994a, p. 114 ff. followed by Woerther 2012a, p. 139 ff.

8 Even the date of Hermagors’floruit is uncertain. He was presumably teacher of rhetoric around the half of the second century B.C. His Τέχνη is lost, and modern scholars have tried to reconstruct it from the quotations of his doctrine in later Latin and Greek handbooks. The result, of course, can only be fruit of personal assumption: cf., e.g., Piderit 1839, Thiele 1893, Matthes 1958, Matthes 1962, Barwick 1961, Barwick 1964, Barwick 1965b, Heath 1994a, Heath 2002b, Woerther 2012a.

9 In the conjectural cases there are only the first three elements of this sequence because the defendant denies the claim of the prosecutor and, consequently, does not need to justify himself. The question, however, is much more complex than it can appear from this scheme because of the inconsistency of the Latin terminology used by the authors to indicate the role of the plaintiff and of the defendant after ascertaining which is the quaestio and because of the difficulties which arise in any tentative to find a correspondence with the Greek terminology: cf. above, n. 7.

10 Fortun. 71, 20 ff. Calb. Mont. Quid est ductus? Quo modo tota causa agenda sit; Mart. Cap. 470, p. 165, 4 ff. Willis ductus autem est agendi per totam causam tenor sub aliqua figura servatum: cf. Calboli Montefusco 1979, p. 288 ff. and 2003, p. 118 ff.

11 I dealt in detail with this topic in my book on the status doctrine: cf. Calboli Montefusco 1979, p. 270 ff. and 1986, p. 12 ff.; cf. now Woerther 2012a, p. 212 ff. and 2012b, p. 179 ff.

12 Cf. Sopat. RhG V 61, 28 f.; 69, 30 f. Walz.

13 Cf. Grill. p. 57 Jakobi. In the development of this doctrine not only is the number of the ἀσύστατα raised up to eight, but also other cases were taken into account and considered as ἐγγὺς ἀσυστάτων (Hermog. 32, 10 ff. Rabe). The two passages, however, have been discussed at length by Woerther (2012a, p. 212 ff.; 2012b, p. 179 ff.) who maintains that the Hermagorean paternity of this doctrine should not be referred to Hermagoras of Temnos, but to “Hermagoras le Jeune” (second century A.D.).

14 For more quotations cf. Calboli Montefusco 1986, p. 15.

15 Cf. also the comments of Adamietz 1966, p. 211 ff. Interestingly enough, Heath (1994a, p. 119, n. 15) says that to accept this definition we should reinterpret the whole giving to αἴτιον the meaning of ‘the ground of the initial defence’ instead of that of the ‘initial charge’, i.e. ‘the cause of the dispute’. Despite my own difficulties I do not think that this reinterpretation would be possible.

16 Cf. also Cic. Part. Or. 102 ff.; Top. 95; Rhet. Her. 1.26; Quint. Inst. 3.11.1 ff.; Iul. Vict. 5, 9 ff. Giom.-Celent.; Mart. Cap. 461, p. 160, 18 ff. Willis; Grill. p. 82 Jakobi. As already mentioned before, however, several difficulties in this regard arise because the authors are not consistent in the terminology to indicate the role of the prosecutor and of the defendant.

17 In favor to the Hermagorean paternity of this sequence was already Adamiez 1960, p. 100 ff.; 1966: 210. This hypothesis has been recently maintained by Heath 1994a, p. 119 f. followed by Woerther 2012a, p. 144. Against, among others, Matthes 1958, p. 175; Barwick 1965a, p. 67.

18 Differently from the αἴτιον αἰτίου of Augustinus’ text, this expression seems here to be correct because referred to the περίστασιςαἰτία’ and not to an αἴτιον meaning causa iudicii: cf. also Adamietz 1966, p. 211 who, anyway, considers this step ‘offenbar nachherma go reisch’ and Calboli Montefusco 1972, p. 286.

19 As to the relationship μετάθεσις τῆς αἰτίας / conjectural question, cf. Iul. Vict. 21, 21 ff. Giom.-Celent.

20 Hermog. 49, 7 ff. Rabe “Transposition of cause arises in relation to the sequence of events. That is based on words, acts, or feelings: if it is based on words, the transposition of cause is introduced according to letter and intent... If the sequence of events is based on acts, the transposition of the cause is argued in the manner of a thesis... If it is based on feelings, the transposition of the cause arises in the manner of a plea of mitigation”; English translations from Hermogenes ‘On Issues’ are by Heath 1995.

21 Cf. Maxim. Planud. RhG V 279, 30 ff. Walz; Anonym. RhG. VII 299, 7 ff.; 315, 3 ff. Walz; Syrian. II 83,8 Rabe and Calboli Montefusco 2007, p. 166.

22 Porphyrius RhG IV 397, 8 ff. Walz (= Fr. 14 a Matthes). Recently this witness has been discussed by F. Woerther (2011, p. 206 ff.; 2012a, p. 221 ff.) who does not share Matthes’ choices (1958, p. 140 ff.; 1962, p. 25 ff.) to quote also a part of the Greek text (the reference to the ἀντιθέσεις) that, in her opinion, is not referred to the Hermagoreans’ but to Porphyrius’ doctrine and to consider the Hermogenean μετάθεσις τῆς αἰτίας as derived from Hermagoras of Temnos’ teaching on the basis of a comparison with Augustinus’ text. She does not share Heath’s choices either (Heath 2002a, p. 8 ff.; 28 ff.; 2003, p. 158 ff.), namely the length of the quotation and the attribution of the term χρῶμα to the ‘Hermagoreans’ referring to the younger Hermagoras. She cuts the quotation immediately after the mention of the ‘Hermagoreans’ and maintains that the only interest of Porphyrius was here terminological, i.e. mentioning that the ‘Hermagoreans’ used χρῶμα to indicate Hermogenes’ μετά θεσις τῆς αἰτίας. As to the identification of these ‘Hermagoreans’, finally, she leaves the question open and in her edition puts the fragment among the ‘Incerta’(2012a, p. 43).

23 Cf. Calboli Montefusco 2007, p. 168.

24 Cf. their description, e.g., in Fortun. 107, 2-11,3 Calb. Mont.; Aug. 141, 15 ff. Halm; Victorin. 213, 43 ff. Halm and Calboli Montefusco 1979, p. 342 ff.

25 Cf., e.g., the relevance of persona and negotium for the argumentative topic as dealt with in Cic. Inv. 1.34 ff.; 2.17 ff.

26 Cf. Aug. 142, 6 ff. Halm Cur significat causam faciendi vel dicendi vel cogitandi, rem ut mea fert opinio ad costituendam quaestionem in primis necessariam.

Auteur

Università di Bologna

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