Koos Malan is a friend, and an intellectual who casts a long shadow. As a scholar of South Africa’s highly unusual jurisprudence, he has had to become familiar with several legal traditions, and has witnessed significant changes in constitutional order in his lifetime.

In his political writings, Malan makes the homogenising functions of the state central. His thesis points at these effects deriving from structural facts about the state which contradict liberal assumptions about the division of powers.

The primary insight from his work for me, is the notion that separate institutions ultimately share the same ideology, and will consequently stamp each of their domains with the approved groupthink they inherited from the common system that elevated them.

I have used his framework to critique South Africa’s political-legal order before, and have found it to be a very sharp and reliable implement. His main thesis, There is no Supreme Constitution, ranges quite widely, both chronologically and geographically, and so has import for many Western (and non-Western) polities today.

His treatise on “statist-individualist constitutionalism” points out that the rights of the individual in the modern state serve to produce a process of homogenisation, liquifying bonds and distinctions within the state, and realigning the citizens with the ideological designs of the institutions and the character of the ruling culture.

But increasingly, Malan has written about the dissolution of institutions and the state more generally. His latest article on LitNet is a very good description of what is happening to South Africa at an institutional level (it can be found here in Afrikaans. Use Google Translate if you must).

There are two aspects of this latest essay I would like to flesh out.

The first of these, is the particular logic of South Africa's homogenisation as it pertains to identity. SA faces a particular conundrum, given the natural heterogeneity of its demographic base.

As a result of there being no dominant black ethnic group, there is no common point for culture to form around - the ancestors are not shared, the ceremonies are not shared, the monarchs are not shared, nor is the language. The only majoritarian commonality is blackness.

The consequences is an identity that forms around the lingua fanca, English, and around blackness. This has been written about many years ago, by Jordan Ngubane, in a useful essay called Conflict of Minds” from 1979, in which he outlines the development of a “New African” culture in the migrant communities that came from the rural homeland areas to settle in the mining towns, mission posts and agricultural projects.

This “New African”, whose institutionalisation under white industrial society and the Christian missions produced certain common features, was shorn of his roots, sacred grounds, familial ties and obligations, and mingled with other neighbouring ethnicities to produce an urban black identity substantively different from each of its constituent parts.

This process of ethnogenesis has produced a new ethnicity, the unhyphenated Black South African, whose nationalism and political identity has formed around race, and around opposition to white rule.

Integration into this group is more or less impossible. While a few foreign black people can negotiate a semi-permeable boundary of identity based on opposition to whiteness and a knowledge of the mixed dialects of English spoken in the cities, those who lack the pigmentation or physiognomy to blend in cannot be fully integrated.

And so the New South Africa has a limited model for its homogenisation trajectory. It cannot integrate non-blacks into its core identity. By contrast, an independent Zululand would have a common political, spiritual and linguistic culture, with its own rudimentary philosophical tradition. Non-blacks could integrate.

But no racial minority can integrate into the Afro-Saxon black-nationalism that defines the coming South African dispensation. There is no ritual or philosophical commonality that others can latch onto as evidence of rootedness, since the New African is not himself rooted.

The vision of the new dispensation is articulated in a combination of Biko, Fanon and Marx – radical redistribution of property, black racial supremacy, and a skeptical allyship with paler non-white races, primarily revolving around an opposition to white prosperity.

Another friendly criticism I have, is his focus on the disintegration of the state. This is true, but there are big ethnic disparities in how elements of our society reacts to it. Whites in particular hew to the letter of the law, and often enforce national policies in corporate structures, even when enforcement is not strong enough to implement these policies via the state.

The DA for example, is much more eager and effective implementing ANC redistribution policies than the national govt. Companies are eager to fulfil BEE quotas, even without active oversight, and private schools press Critical Race Theory and racism witch-hunts, all while the informal economy blossoms entirely in the absence of any legal restraint. The taxi cartels flout their tax evasion, land invaders operate with relative impunity, political factions compete with violence.

But even the Afrikaner nationalist organisations continue to behave in rigid consistency with the law, meaning that white SA is the most governed portion of the state. For SA to really break into the patchwork Malan envisions, white SA would have to rebel, and openly declare dissent.

White people are far more institutionalised, and struggle to live without a sense of order and law – only by establishing an alternative locus of political authority can we really be comfortable and effective.

But this requires a consciousness shift that would include a collective tax strike and a psychological transfer of authority to civil society organisations like Solidariteit, Afriforum, Action Society, Sakelige and the like, with central coordination and serious mechanisms of accountability.

In mere material terms, it would be rather trivial to disengage and shatter the SA state, by simply removing the struts that support it. It would only require a boycott of about 25% of the national tax revenue. But the psychological bonds and loyalties to a state that exists in existential opposition to us seem rather stubborn.

There are some potential positive developments in this regard, and many other projects become possible as it takes shape, from the internal resettlement-and-concentration strategy of the Anchor Towns, to the autonomous provision of security, education and industrialisation.

Cape independence can only provide a partial solution, and a reservoir of protected capital – the ultimate solution lies in the securing of communities in the interior, by devolving control to local and municipal structures for the management of towns with a majority of minority racial groups, and building and securing internal trade routes.

This is a very long-term vision, and cannot be seen in the light of a single electoral cycle. But the biggest and most important steps are projects that can and must be initiated in a rather short time frame.

It would take a lot of courage from our leadership to make a clean break with the hostile authorities we live under, and it may soon be necessary. But it will not happen on its own. We must make the choice, and cross the Rubicon, or we will go under with the state we built.

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