The last, posthumous book by Giorgio Berti, published in 2008, comprises noth new pages (sometimes autobiographical) and pages (sometimes revised) appeared over twenty-five years. It is therefore a book that offers a quite precise idea of Berti's thought with regard to a considerable part of his main research topics: constitutional interpretation, public responsibility, relations between public and private law, administrative justice, science of administration. Starting from this book, the paper aims to offer some considerations about Berti's views. It is mainly focused, on the one hand, on some methodological aspects and, on the other hand, on the reversal of the relation between legislation and administration. By that the author means that the fundamental source of legitimation of the administrative action is not political, but social. It follows, among other things, an idea of legitimacy as the fulfilment of social needs, rather than the mere respect of forms, and the belief that a never-ending dialogue between society and administration is needed. But, to be authentic, this dialogue requires the mutual recognition of the interlocutors.

On the basis of a careful reading of the latest book by Stefano Rodotà, the paper offers some observations on three main topics. Firstly, it highlights the performative function of declaring human rights even when ensuring their immediate protection is not possible. Secondly, it points out the difficult cohabitation between rational logic of markets (of the «wealth of nations») and reasonable ‘logic’ of human rights, dignity, emotions, life (of the «moral sentiments»). Finally, it stresses some weaknesses of the Charter of fundamental rights of the European Union as alleged «foundation» of a Europe really different from the one we have known so far.

The paper reflects on two of the main weaknesses of meritocratic doctrines. Firstly, considering John Rawls, a recent speech by the Pope and a recent book by a United States economist about the role of luck in life and particularly in economic processes, the paper underlines that meritocracy minimizes the role of natural and social lottery. As a consequence the lucky, believing to be simply talented and hardworking, are quite reluctant to share their success improving the economic, social, cultural environment where the unlucky live and work. Secondly, the paper remarks that the Italian Constitution, as documented by the preliminary works as well, is written for the last, the unlucky, the needy. Of course it does not neglect the merit, but, at the same time, it keeps away from the concern to establish a domination of the merit beyond few and delimited sheres.

The book behind this discussion stresses how the issue of the ideology of evaluation, a corollary of the ideology of meritocracy, is related to scientific research, framing it in an economic-political and politico-economic context that leaves no space for alternatives , without which politics simply does not exist. The system of evaluation of universities and research promoted by the competent Italian national agency ANVUR seriously distorts academic work in all sectors and at all levels, absorbing considerable resources, of which research is thus deprived. This system of evaluation, which is serial but not always serious, needs to be countered by an alternative approach to evaluation that is not centralised, monopolised, all-seeing or standardising, but informal, diffuse, horizontal, reciprocal and concerned not so much with guaranteeing 'rigorous', 'regular', 'normal' research, as with stimulating original, 'exceptional' and 'revolutionary' research. If evaluating is tantamount to breathing for a researcher, ANVUR cannot breathe for everyone.

The scholarly paths of Giorgio Berti and Paolo Grossi cross time and again. The interviewer draws on some of these encounters as cues for Grossi to reflect on some problematic key issues in Berti's vast and complex work. In the appendix to their conversation the interviewer, including in light of Grossi's replies, tries to briefly make evident that the points of contact between the thinking of Berti and that of Grossi are not simply intellectual but first and foremost spiritual and anthropological, so that even differing views not devoid of scholarly significance, as those emerging from some of Grossi's remarks, appear unable to scale down the profound ideal consonances, the 'radical' choices of the same values used to underpin legal discourse.

Being in service of the meritocratic dogma, the evaluative liturgy is by now so deep-rooted that often we cannot really appreciate how and how much the freedom of science and teaching is reduced and altered by those rituals. The new public management techniques for the ‘assessment’ of the research ‘quality’, based on a naive, childish trust in the objectivity of numbers, of numerical aims and indexes, make it impossible to discuss quality in qualitative terms. Only what can be numbered, standardized is considered scientific. What cannot be understood in these terms is considered irrelevant and so expelled from the scope of what is scientifically knowable. These way we cannot know just that qualitative nuance, that decisive «almost-nothing» which makes it incomparable, inimitable, irreplaceable, unclassifiable a person or a thing, a process or a product, an event or a phenomenon.

La riforma universitaria del 2010, che in nome della meritocrazia ha preteso di rendere l'università più efficiente e trasparente, ha partorito sostanzialmente una maggiore e più autoritaria confusione amministrativa e, in spregio alla Costituzione, una minore libertà di ricerca scientifica e di insegnamento. Il ricercatore universitario è sempre più un cacciatore di fondi e sempre meno uno studioso, sempre più un compilatore di moduli e sempre meno un insegnante, sempre più un amministrativo e sempre meno un... ricercatore. La valutazione della ricerca diventa misurazione, sicché la qualità diventa quantità. Il tempo del ricercatore diventa, come quello dell'imprenditore, denaro, quello che lo Stato non ritiene saggio investire in ricerca e in istruzione. E il denaro diventa l'oggetto di continue e sempre più barocche gare fra ricercatori, gruppi, dipartimenti, atenei, sicché le virtù dell'integrità morale e della collaborazione cedono il posto a virtù 'atletiche', 'agonistiche'. Ma non andrebbe dimenticato che "agonismo" e "agonia" hanno l'etimo greco in comune...

This paper highlights how the «explosion» of the procedures of meritocratic “evaluation” of scientific research fragments the scientific biography of each researcher in numerous and usually brief units. The paper focuses on two major detrimental consequences of this proliferation of “evaluation” procedures. Firstly, researchers spend a lot of time showing that they deserve their job and their salary. As a consequence they lose the motivation intrinsic to their work, to their choice to be researchers: vocation, passion, pleasure to work well and “produce” new knowledge rather than serial and often useless publications for the sake of squaring the numbers required for the “evaluation” procedures. Secondly, researchers are forced to renounce their past which no longer falls within the periods “evaluated” by those procedures, are treated until retirement like newcomers and must continuously show, each time starting from scratch, that they have “produced” something, that they are someone. As a consequence they lose self-esteem: if their value is perpetually under scrutiny, they work and live in perpetual crisis. If the future is always the only thing that matters, the object of the “evaluation” is no more the scientific biography of a researcher, but just a segment of a research activity detached and independent from that biography.

By now even in Italy evaluation activities, in many sectors among which university, tend to prevail over evaluated activities. This phenomenon takes place in the context of university policies that evaluate so much but then fund very little. The phenomenon has a lot of negative aspects. For example, it produces a weakening of the constitutional freedom of research: university researchers are compelled not to follow their intuitions and vocations, because they need to conform more and more to heteronomous parameters. So university research is running the risk of becoming more and more standardized. Moreover the need of overproduction is more and more absorbing the time that university researchers should devote to reading and teaching.

The evaluation ‘culture’ shows all its cultural poverty when it evaluates containers rather then contents, especially within the times of the evaluative bureaucracy rather than the longer and not predictable times of recognition and circulation of scientific truths. Actually the TINA (There Is No Alternative) ‘culture’ is a non-culture, because culture and lack of alternatives are mutually exclusive. Luchily the obvious is almost never really obvious. For example the antihermeneutic claim that meanings can be measured, which looks obvious to the followers of the evaluation ‘culture’, is not obvious at all. To measure meanings could be a meaningless operation. «Measurement» is counting or comparison, but also, or first of all, sense of proportion, that is equilibrium, discretion, reflexivity, moderation, prudence. Measurements lack sense of proportion if they do not remain at the service of evaluations, instead of pretending to replace evaluations, and so to reduce the real to the measurable. Which, if it is not easy in the more or less hard sciences, is simply ridiculous in the more or less soft ones.

For the purpose of not reducing by half the terms of notification in 'sensitive' areas of the shortened trial, the Plenary meeting of the Council of State, with decision no. 5 of 2002, had made a passing reference to the explicit equalization of the main appeal and the only incidental appeal, implicitly but clearly rejecting the equalization of old/new additional grounds and main/incidental appeals. The Plenary meeting, with decision no. 1 of 2010, reversing its implicit obiter, specifies that the deadline for notification of new and, obiter, old additional grounds cannot be halved (but see articles no. 54, 129 and, above all, 130 of the draft of the administrative procedure code). Instead, the Plenary meeting does not take a position on the obiter of first instance whereby new additional grounds do not need autonomous power of attorney (but see art. no. 29 of the same draft). Finally, the Plenary meeting does not take any position on the obiter of first instance relating to the conferment of power of attorney which is to be stapled only in case of the last page of the judicial act being completely filled. On this point, which is not resolved in the draft, a decision by case law would have been appropriate to say the least, since formalistic case law is prevalent (but by no means uncontested) in administrative trial proceedings of first and second instance, which does not take into account the reasons why the legislature retroactively intervened in 1997 on art. no. 83 of the civil procedure code, disavowing the joint sitting of the divisions of the Court of cassation and leading case law to take a considerably different position, which has remained uncontested since 1998.

Many "short" reasons are longer than many "ordinary" reasons, which empirically confirms that the difference between the two legal models of the grounds of a court decision is far less clear than is generally believed. The hypothesis proposed here is that the working method of the judge should not be a battleground for legislative conquests. The justification of a decision is a matter of wisdom, prudence and balance, not a matter of number of pages to fill, points to decide or previous decisions to recall. But wisdom cannot be transferred or acquired by legal means.

Il volume raccoglie tre scritti su Giorgio Berti, uno dei più colti e originali giuspubblicisti italiani della seconda metà del secolo scorso. Il "Dialogo" con Paolo Grossi segnala la profonda affinità spirituale tra il giuspubblicista e lo storico del diritto, entrambi promotori di un'idea "antiassolutistica" e "pos-moderna" di diritto, di un'idea di diritto non più ipotecata da quella sineddoche identificante legge e diritto che ha connotato l'intera modernità giuridica come l'epoca, per tanti versi non ancora tramontata, del legislatore giusto in quanto legislatore e dell'interprete fedele al proprio ruolo in quanto asservito, ma anche autoasservitosi, alla lettera della legge. Il secondo scritto, dedicato all'ultimo libro, postumo, di Berti, in cui sono riproposti, con modifiche e integrazioni, saggi apparsi nell'arco di di circa venticinque anni, si sofferma, in particolare, sulla prospettiva capovolta, e capovolgente, da cui l'autore indaga i rapporti tra persone e amministrazioni, tra amministrazioni locali e centrali, tra società e politica. Il terzo scritto, dedicato ai contributi bertiani dell'ultimo quinquennio, pone in luce, anche retrospettivamente, il nodo, in Berti sempre più stretto, tra ermeneuticità e 'processualità' (in funzione ermeneutica) del diritto pubblico, dedicando spazio, in special modo, alla vicinanza dell'autore all'ermeneutica fenomenologico-ontologica di Hans-Georg Gadamer e alla conseguente distanza dall'ermeneutica metodologica di Emilio Betti.