Scholars have long contended that the state has a monopoly on the use of violence. This monopoly is considered essential for the state to assure the safety and security of its citizens. Whereas public officers have the broadest authority to deploy violence, in order to make arrests or to inflict punishment, private citizens allegedly have severe restrictions on their use of force. Specifically, the state is said to only authorize private violence when civilians face an imminent threat of unlawful force or when civilians are attempting to prevent a crime.

Yet the state explicitly authorized private violence against enslaved people during the colonial and antebellum eras in order to exploit their labor. And from Reconstruction through the civil rights movement, state officials persistently declined to enforce criminal laws when persons classified as white engaged in violence against Black communities, regardless of whether the perpetrator was a public or private actor. Although legal scholars have occasionally acknowledged these historical incidents, they have not sufficiently interrogated how race dictates access to safety and how race influences when the state will surrender its monopoly on violence.

This Article is the first in a series to use criminal law and policy to explore how Black people are excluded from safety guarantees traditionally associated with the social contract. Drawing from antebellum and postbellum case law, the Article illuminates how the state has relinquished its monopoly on violence in order to sustain race- and labor-based hierarchies. As a result, violence has assumed the shape of a legal right. This right can be stated as follows: violence that enables and enforces the dominant position of persons classified as white shall evade punishment, subject to limited exceptions; if punishment is inflicted, such punishment shall be less severe than the punishment that is customarily imposed for the underlying criminal offense.

Conceptualizing violence as a legal right has two distinct advantages. First, the right illuminates the potential benefits and pitfalls of securing safety for Black communities through traditional legal channels. Second, the right can help guide the strategic decisions of stakeholders that are pursuing legal interventions grounded in critical theory and abolitionist philosophy.