Since the 80’s of the last century a trend has emerged in the English language literature on Chinese thought that suggests reading early Confucian texts as a form of virtue ethics. However, Alasdair MacIntyre has presented early Confucian and Aristotle’s thoughts as incommensurable thought systems and doubted that notions and statements of one incommensurable thought system can be adequately expressed and addressed within the framework of another. This article discusses MacIntyre’s position and two strategies - employed by the proponents of virtue ethics interpretation of early Confucian texts - of meeting MacIntyre’s challenge. The article attempts to show that none of the responses were successful, thus leaving the quest for the most adequate philosophical framework to interpret early Confucian ethical thought open.
The implications of incommensurability for rights’ adjudication tend to be overlooked in much of contemporary constitutional theory. This paper criticizes the dominant “one right-answer” approach to conflicts of rights, and develops an alternative approach that is better suited to constitutional rights’ adjudication in contemporary pluralistic legal orders. It is submitted that the normative reasons for having courts undertake the value-choices implicit in constitutional rights’ adjudication, and for preferring certain legal methodologies over others, must reflect the role of courts in resolving social disputes in the light of specific aspects of the economic, social, and legal life of the polities in which those courts operate. It is further argued that any theory that builds from this approach needs to answer two inter-related questions: when is constitutional rights’ adjudication by courts appropriate, and how rights’ adjudication should be pursued.