The Learned and Lived Law: Essays in Honor of Charles Donahue

This collective volume, dedicated to Charles Donahue, Professor of Law at Harvard Law School, contains 24 studies on issues of legal history. The largest part of the book is devoted to the Middle Ages and the Early Modern Period, in England and Continental Europe, but Roman and North American law, antiquity and modernity, and classical receptions in the Far East are also well represented.

The central idea of the volume is reflected in its title, inspired by the research and teaching emphasis of the honoree. Through his work, Charles Donahue contributed to the study of both the learned legal tradition (learned law) and the ways in which the law was experienced during its application (lived law), highlighting the connections between the two worlds while respecting their distinct epistemology. Similarly, the book includes contributions dedicated to the history of legal ideas and legal doctrine, with an emphasis on the learned legal tradition of the revival of Roman law, alongside studies that use social history methodology, leveraging judicial archives and adopting micro-historical approaches.

But at this point, the title acquires an additional dimension: Beyond the technical definition – a reference to learned law – we can speak of learned law as a term that reflects legal education in its entirety (source texts and their analysis, legal doctrine, legal tradition). Correspondingly, lived law reflects in its totality how law and the rules governing human coexistence are experienced, challenged, and reformulated in the daily life of individuals and groups.

Viewed separately, the studies contained in the book capture the level that international legal-historical scholarship has reached today, both in terms of the objects and fields covered and in terms of the methodology and scientific approaches adopted. Many studies attempt connections, comparisons, and adopt an evolutionary narrative. In all these essays, the legacy of Charles Donahue emerges clearly: law is not merely doctrine, but a living experience; it is not only national, but also transnational; it cannot be separated from religion, economy, or family life. These contributions collectively demonstrate that pre-modern law was dynamic, contested, and profoundly human.

This twofold pluralism is reflected in the biographies of the authors (Charles Bartlett, Mary Elisabeth Basile Choppas, Thomas Burns, Anton Chaevitch, Wim Decock, Rowan Dorin, Sally E. Hadden, Elizabeth Haluska-Rausch, Nikitas E. Hatzimihail, Samantha Kahn Herrick, Daniel Jacobs, Elizabeth Papp Kamali, Amalia D. Kessler, Saskia Lettmaier, Sara McDougall, Stuart M. McManus, Elizabeth W. Mellyn, Bharath Palle, Ryan Rowberry, William Suárez Potts, Carol Symes, James R. Townshend, Claire Valente, John Witte, Jr.) and in the themes of their contributions.

A central theme running through this collection is the way in which pre-modern legal systems understood status, especially of women, family, religious actors, and legal subjects moving across intersecting jurisdictions. This reflects Charles Donahue's pioneering work on medieval marriage and the social realities of law. His influence is evident throughout the essays, which collectively show that law in pre-modern societies was not merely a rigid doctrinal structure, but a living system negotiated within households, courts, economies, religious institutions, and international frameworks.

Women, Domestic Economy, and Material Life: Several essays address a question central to Donahue's research: what was the legal capacity of women in societies whose broad norms seemed to place them in subordination? Elizabeth Papp Kamali's chapter re-examines spousal consent in medieval England, connecting it to criminal liability. She demonstrates that the doctrine of consent, central to both ecclesiastical law and the trial of felonies, created legal space for wives to invoke coercion when jointly charged with their husbands. Although they were not granted general immunity based on marital status, the courts acknowledged the dynamics of dominion and will, revealing a nuanced approach to women's liability. Kamali thus reveals how gender, power, and intent interacted in legal reasoning.

Focusing on a 17th-century French court case that challenged the validity of a 24-year marriage after the wife’s death, Saskia Lettmaier reconstructs the opposing legal arguments to uncover the implicit assumptions that led a secular court to annul the marriage. Although the court did not issue the reasoning for its decision, the chapter shows how property interests—particularly inheritance rights—often motivated such disputes. The analysis demonstrates the fragility of marital legitimacy when property and kinship interests clashed, offering a vivid example of how the law could destabilize, rather than merely regulate, family relationships.

Elizabeth Haluska-Rausch traces how aristocratic women in Bas Languedoc, who initially held significant property rights under written law, saw these rights undermined in practice between the 11th and 13th centuries. Although the legal rules regarding dowry and inheritance remained unchanged, aristocratic men increasingly disregarded them, excluding women from land ownership and guardianship. This chapter dramatically demonstrates a key observation by Donahue: written law is only one part of the story; practice often diverges under changing social pressures.

Turning to the family, several essays explore the legal significance of the house or household. Elizabeth Mellyn’s contribution on suicide in early modern Italy analyzes how legal and theological doctrines interacted with emerging medical perceptions of mental illness. Although suicide remained a crime and a sin, legal scholars increasingly characterized it as a matter requiring judicial discretion. The rise of psychiatric hospitals provided alternatives to criminal prosecution and reflected changing attitudes toward familial responsibility, mercy, and social order. Sally Hadden examines the material afterlife of legal texts, reconstructing the legal book trade in 18th-century America through newspaper advertisements. She shows how family members—particularly widows—became brokers of legal knowledge by liquidating legal libraries. This chapter reveals books as economic assets, intellectual tools, and family legacies—placing law within networks of kinship and commerce. Carol Symes explores the emotional and symbolic significance of family archives. Using disputes over charters and deeds, she shows how legal documents became prized heirlooms, embodying family identity and claims for generations. Symes’s work reflects Donahue’s own engagement with archives and his belief that manuscripts are not just texts, but objects of living legal culture. John Witte Jr. carries the problematic of the house into the realm of economic theory, arguing that the early modern Protestant family provided the discipline, structure, and moral foundation for capitalism. Through an analysis of household manuals, he demonstrates how Protestant thought transformed the family into a microcosm of economic rationality, illustrating the profound intertwinement of theology, law, and economic life.

Learned Law: Nikitas Hatzimihail’s chapter on the early legal scholars (Glossators) challenges conventional narratives about the conflict of laws, tracing its roots back to the 12th century. He shows that figures like Accursius developed the doctrine of conflict as a response to the real needs of jurisdictional pluralism and commerce. This aligns with Donahue’s interest in lex mercatoria and legal internationalism. Charles Bartlett’s essay similarly reconstructs a moment of transformation, showing how Venetian jurists used the Roman concepts of res communes omnium to articulate sovereignty. Here, a concept of private law—the ownership of a fisherman's hut—evolves into a theory of public dominion. Bartlett reveals how jurists combined Roman sources with political necessity, showing how legal reasoning could serve political craft. Daniel Jacobs traces the genealogy of property theory from Roman law to Grotius and Locke, using the famous case of Pierson v. Post as a reference point. His analysis underscores the continuity of legal thought across eras and demonstrates the enduring significance of Roman doctrines in shaping modern concepts of acquisition and ownership. Wim Decock examines transactiones (compromises/settlements) in early modern Iberian legal thought, showing how canonists and civil lawyers understood settlements as mechanisms for peace and moral order. This reflects an approach to law focused not on courtroom victory, but on reconciliation—a theme perfectly consistent with Donahue’s studies on medieval dispute resolution.

Procedure: James Townshend examines the legal treatment of witnesses in Roman law, filling a gap in scholarly research by creating a taxonomy of their roles and competencies. He tracks the evolution of ideas about competence, gender, status, and impartiality, showing that the procedural history of law reveals its social assumptions. Amalia Kessler's study of Francis Lieber places American procedural thought in a global context, tracing how comparative legal concepts influenced American legal modernity. She underscores the importance of intellectual interaction, reflecting Donahue's belief that law is part of a broader humanist pursuit. Anton Chaevitch studies Goethe’s “Faust” as a legal text that presents a narrative of progress during the transition from a closed, formalistic law, where a twisted pact like that for Faust’s soul is enforceable, to a system that transcends borders and is based on justice and human dignity, where it is not. In the final essay of the collection, Bharath Palle situates Wesley Hohfeld’s legal theory within the broader intellectual movement of modernism, arguing that Hohfeld’s attempt to clarify legal concepts paralleled literary efforts to overcome the limitations of common language. Palle shows that Hohfeld was not merely a jurist, but a modernist thinker who reshaped the very grammar of law.

The book is an essential reference point for legal and historical researchers of the legal phenomenon and legal education for a wider audience. Younger readers (undergraduate and postgraduate students) will find an opportunity for an advanced introduction to subjects and approaches, as well as examples of research methodology.

The volume came about as an initiative of Nikitas Hatzimihail, Professor of Law at the University of Cyprus and Senior Research Fellow at the Institute, in collaboration with Saskia Lettmaier, Professor at the University of Hamburg, and Liz Kamali, Professor at Harvard.

Charles Donahue Jr (b. 1941) has served as a Professor of Law focusing on legal history and civil law, first at the University of Michigan (1968-1979) and from 1980 until today at Harvard University, where he has held the Paul A. Freund Chair since 1995. Donahue has been the supervisor and mentor to many doctoral students, not only from Harvard Law School (such as Hatzimihail and Lettmaier) but also, in particular, from the History and Classics Departments, as well as Harvard graduates who went on to pursue doctorates at other universities (such as Pap Kamali who is now taking over the teaching of English legal history at Harvard).

His work consists not only of what he himself wrote and published, and what he taught to tens of thousands of scholars, but also his decisive impact on the thinking of many scholars who moved into different subjects and regions of the planet, inspired by him. But more broadly, for generations of students, his courses have been transformative encounters with law as a humanistic science, where laws and cases were never examined in isolation, but came alive through language, religion, economics, literature, and art. Students from all walks of life were welcome, and many found their academic vocation in his seminar, discovering in legal history not only a field of study but also a way of understanding the world.

Donahue’s academic research, based on legal realism and fueled by his archival knowledge, has radically reshaped our understanding of medieval law. Instead of treating doctrine as an abstract system, he examined how law operated in practice, turning his attention to court records, marriage cases, and ecclesiastical archives in England and Continental Europe. What distinguishes his work is not only the discovery of new sources, but also the method he applied to them: careful reading, deep contextualization, and comparative analysis of different legal cultures responding to similar pressures. From Roman law to the Lex Mercatoria, from marriage law to property theory, Donahue’s writings—always accessible, elegant, and intellectually bold—have broadened the horizons of legal historiography.

Equally important is Donahue's unparalleled role as a mentor and institution-builder. He has dedicated tremendous energy to cultivating new scholars, carefully reading their drafts, offering generous guidance, and creating scholarly resources for future research, including a monumental database of marriage cases covering four decades of archival work.

Overall, his teaching, academic activity, and mentorship reveal a unique legacy: Charles Donahue has not only promoted knowledge of the past—he has shaped the future of legal history itself.