When Milsom enrolled Maitland among the British Academy's Master-Minds, he drew attention to a number of rather strange things about him. Other than Rhys and Keynes, unfairly advantaged in so far as they are commemorated by whole lecture series, Maitland is the sole Academy Fellow to have been the subject of one lecture, let alone (as is now the case) of two. He is also one of very few historians. Alongside Maitland are ranked only Thucydides, Bede, Gibbon, Kemble, Carlyle, Burckhardt, and Bémont—an assortment that would have bemused him as much as the eminence he was thus assigned. But, oddest of all, his repute is of a wholly different order from that of his fellow founders of the Academy, or of the historians it has dignified. It is not just that he is consulted and recycled, unlike Cunningham or Pollock (his joint venture with Maitland apart). They, like Gibbon, Bede, and the rest, are now a chapter in historiography, historical phenomena themselves requiring explanation. We may seek information, even (in some cases) entertainment from them. We do not debate with them as we argue with Maitland. That is what Milsom went on to do. It was, of course, a far greater compliment than that conveyed by the title of Academy Master-Mind. It is also one that would beyond question have been more congenial to Maitland himself. He would have been appalled by his canonization, as Milsom has repeatedly stressed. To adumbrate a motif that will recur in these remarks, he had a Millite faith in the creativity of dissent. The honor done him was to treat a scholar who had been in his Canary Islands grave for the best part of a century as if he were a contemporary colleague.

Nineteenth-century American judges and lawyers often claimed that Christianity was part of the common law. From Kent and Story in the early part of the century, to Cooley and Tiedeman toward the end, the maxim that “Christianity is part and parcel of the common law” (or some variant thereof) was heard so often that later commentators could refer to it as a matter “decided over and over again,” one which “[t]ext writers have reiterated and courts have affirmed.” The maxim even received an endorsement of sorts from the Supreme Court, which in 1844 affirmed that “the Christian religion is part of the common law of Pennsylvania.”

In early twentieth-century America, the novel technology called “eugenics”—a potent hybrid of biological science, statistical method, and cultural assumptions—won a diverse following of academics, animal breeders, social workers, criminologists, psychiatrists, institutional superintendents, philanthropists, and activists spanning the political spectrum from socialists to white supremacists. Although heirs to the Enlightenment pursuits of science, reason, and a rationally organized state, eugenicists rejected the Enlightenment's egalitarian strain, insisting that hereditary endowment determined social structure. Fusing Darwin's theory of evolution and Mendel's discoveries in plant heredity, eugenicists claimed to find distinct genetic roots for the many problems of personality and society that alarmed their contemporaries: from “feeble-mindedness” and “psychopathy” to “delinquency” and “hypersexuality.” Within the bright lines of a eugenic worldview, the poverty and crime that pervaded an avowedly meritocratic urban-industrial democracy were comprehended as the offspring of hereditary “mental defects,” racial “mongrelization,” and sentimental charitable efforts that, in a vain attempt to reform deviant individuals, had only assured their survival and reproduction.

The Enlightenment was the age of empathy and abstract identity. The common man no longer was to be pitied for his unfortunate plight. Instead, enlightened gentlemen and reformers strove to empathize with the ordinary person—identify with him—precisely because he was identical to them in some fundamental sense. That sense differed from Enlightenment theory to theory, but the identity remained central. So Bentham insisted that every member of the utility community was like any other because every member's pain and joy equally affected the utilitarian calculus and thus the common good. Contractarians like Beccaria or Fichte portrayed all citizens as identical insofar as they were all signatories to the social contract, a contract grounded in the shared rationality of its signatories who surrendered some of their external freedom to pursue their life plans protected from the chaos of the law of nature. And Kant and Hegel stressed the common capacity for rational deliberation shared by all humans as rational beings.

Markus Dirk Dubber has provided the readers of the Review with an erudite and fascinating essay that traces a change in modern western penal thought since the Enlightenment. What he presents is a very brave attempt to mount a left critique not only of contemporary vicious trends toward the escalation of retributive criminal penalties, but also of the therapeutic concepts of fundamental difference that have characterized rehabilitationist theories of punishment. In Dubber's view, rehabilitationism wandered from the path prepared by the Enlightenment and thereby invited barbaric reactionaries once again to dominate the field of criminal punishment. While the essay makes an important point about the blindness of rehabilitationists to the need to justify and legitimize the imposition of punishment, and while it brings to the attention of Anglo-American specialists the importance of figures from the German Aufklärung, such as Fichte, Kant, and Hegel, and rehabilitationists, such as Krause and Röder, it leaves the reader wondering about how to transcend the limits of the formalism of Enlightenment abstract identity and how to root the geistesgeschichtlich erudition of the author's idealism in the soil of social history.

The contemporary American will to punish is simultaneously in disarray and experiencing dramatic expansion. Crime, despite the ambiguities of its statistical measurement, remains a central focus of contemporary politics. Notwithstanding a “crisis of penological modernism” that has undercut traditional explanations and justifications for the penal apparatus, prison construction continues at an accelerated pace while proposals for increasing the severity of juvenile punishments seem omnipresent. Criminological discussions continue to stress the technicalities of the problem of punishment while larger social issues remain marginalized. In this situation, the evident problems of the criminal justice system are transmuted into programs for increasing its reach and power.

Kenneth Ledford's and Michael Meranze's insightful comments raise important questions about the nature of legal history in general, and of the history of punishment in particular. According to Ledford and Meranze, modern legal history is social history, to be distinguished from “old-style intellectual history.” A product of the latter “historical method no longer in favor,” “The Right to Be Punished” draws Ledford's and Meranze's criticism for its insufficient “root[s]… in the soil of social history” and for its inadequate “account of the … social basis of the modern will to punish” and “the social embeddedness of punishment.”

I first want to thank all of the commentators for their insights on, and criticisms of, my article, as well as thank the editors of Law and History Review for the opportunity to respond. Rather than addressing each comment individually, I will structure my response along conceptual issues raised by all three, although the three comments each have different emphases. The two conceptual categories I use are “technical criticisms” and “historiographical criticisms.” Under the category of technical, I include criticisms of my characterization of neoclassical economics theory and my analysis of particular texts. The historiographical category encompasses substantive historical issues, including which authors should be included in my accounting of law and neo-classical economics as it relates to the reconfiguration of tort law theory. However, it also touches upon broader methodological issues of how one goes about doing intellectual history(ies).