Hi Mike,
Yes, I agree that Habermas greatly values law and its enforcement (while also seeing its dangers, since the National Socialists operated under their "laws" though not "legitimate" laws).
Just to clarify, this is what I wrote:
"As individuals grow through the stages their ethical foundation becomes less dependent on outside definition and more internally grounded. Habermas describes this as a "de-centering" of a maturing person's understanding of the world. At the final stage there is no need for laws, in the sense that a person at that stage of moral development would act in the best interests of a civil society with or without a set of civil and criminal statutes in place.
With sufficient members of a society at the final stage, one might achieve a state that has no need for laws, which has grown beyond lawfulness. In this state there will exist harmony, equality, ethical interaction, and plenty."
While Habermas did not say "no need for laws", the reading suggests that for the special case, where sufficient members of a society are advanced in their practice of discourse ethics, there is no need for laws.
Visiting the section of Between Facts and Norms you refer to (pages 26 and 27 duplicated below), it is clear that Habermas was not, as I am, referring to the best state humanity can achieve. He is referring to humanity "as it is", with strategic (self-interested) actors where the controlling aspects of religious authority are dissolving in a "modern economic society". His argument is that because there are strategic actors and because communicative action fails (which the dialogic web is intended to support) there is a need for laws. I completely agree with you that, in the present society and with humanity's current stages of discourse ethics, there is a need for laws, and Habermas agrees. But there is a situation that one may find by reading Habermas that points out where there is no such need.
To simplify with an example, I would ask, "Did Mother Teresa need a law to prevent her from committing murder?" The answer is "Of course not". No matter where she lived she would not have murdered. Laws are needed only because there are those who act without the "legitimate validity" that arises from the use of discourse ethics. And the dialogic web is a tool that would provide a "virtual conscience" to steer humanity's future along the path of dialogic/discourse ethics/action science broadly and deeply, both reaching billions of people and aiding them in their smallest interaction.
You seem quite stuck on the distinction between Habermas describing the world as it is and my describing the best state of society possible. They are very different, and by looking at the arguments Habermas makes about why laws are needed to see futures and circumstances where they may not be needed. In a world full of Mother Teresa's (or Dalai Lama's, or even the very kind person that probably lives down your street), there would be no need for laws against murder. What I'm working on is how to develop those attributes in humanity. And the dialogic web is the tool to do that.
Ray
Following from "Between Facts and Norms" by Habermas, Transl by William Rehg, 1996, MIT Press, pages 26 and 27.
In what follows, I start from the modern situation of a predominantly secular society in which normative orders must be maintained without metasocial guarantees. Even lifeworld certainties, which in any case are pluralized and ever more differentiated, do not provide sufficient compensation for this deficit. As a result, the burden of social integration shifts more and more onto the communicate achievements of actors for whom validity and facticity - that is, the binding force of rationally motivated beliefs and the imposed force of external sanctions - have parted company as incompatible. This is true, at least, outside the areas of habitualized actions and customary practices. If, as I assume along with Parsons and Durkheim, complexes of interaction cannot be stabilized simply on the basis of the reciprocal influence that success-oriented actors exert on one another, then in the final analysis society must be integrated through communicate action.
Such a situation intensifies the problem: how can disenchanted internally differentiated and pluralized lifeworlds be socially integrated if, at the same time, the risk of dissension is growing, particularly in the spheres of communicate action that have been cut loose from the ties of sacred authorities and released from the bonds of archaic institutions? According to this scenario, the increasing need for integration must hopelessly overtax the integrating capacity of communicative action, especially if the functionally necessary spheres of strategic interaction are growing, as is the case in modern economic societies. In the case of conflict, persons engaged in communicative action face the alternatives of either breaking off communication or shifting to strategic action - of either postponing or carrying out the unresolved conflict. One way out of this predicament, now, is for the actors themselves to come to some understanding about the normative regulation of strategic interactions. The paradoxical nature of such regulation is revealed in light of the premise that facticity and validity have split apart, for the acting subjects themselves, into two mutually exclusive dimensions. For self-interested actors, all situational features are transformed into facts as they evaluate in the light of their own preferences, whereas actors oriented toward reaching understanding rely on a jointly negotiated understanding of the situation and interpret the relevant facts in the light of intersubjectively recognized validity claims. However, if the orientations to personal success and to reaching understanding exhauste the alternatives for acting subjects, then norms suitable as socially integrating constraints on strategic interactions must meet two contradictory conditions that, form the viewpoint of the actors, cannot be simultaneously satisfied. On the one hand, such rules must present de factor restrictions that alter the relevant information in such a way that the strategic actor feels compelled to adapt her behavior in the objectively desired manner. On the other hand, they must at the same time develop a socially integrating force by imposing obligations on the addressees - which, according to my theory, is possible only on the basis of intersubjectively recognized normative validity claims.
According to the above analysis, the type of norm required would have to bring about willingness to comply simultaneously by means of de facto constraint and legitimate validity.
