We generally labor at the thought that perhaps the greatest and only existential threat to the Senate as an institution, nay, powerful branch of government in charge of legislation, is the sad fact that it has become “behavior-driven.”

Borrowing from Samuel Huntington, our society is in a state of decay — two political power blocs in constant clash; economic and social progress stunted by systematic plunder cum looting; chaos one after the other that graphically forebodes a crisis in a democracy.

Most people find themselves all the more confused as to a healthy notion of what is right because it is right, what is legal because it is legal, what is moral because it is moral.

Officialdom may have, wittingly or unwittingly, become confused between law and policy. It may have even presented every big societal issue, when it erupts, as the case of the “chicken and egg” causality dilemma or paradox. The state always navigates through compelling issues wrought with serious implications for our future as a nation.

Just like that philosophical riddle, community existed before any law, before any policy. Every law that came after was by legislated enactment of which Congress was the “power source.” But how is it that the Senate seems to have forgotten all the rules, laws it enacts — past or present, even future? It’s largely so because it is ever distracted from its mandate, its mission and its raison d’etre.

The Senate never ceases to humor us, to walk us through some labyrinthine passageway which looks more like it is leading to an escape rather than to freedom; making it hard to embrace the view that what the administration does is for our collective boon or bane. That leads us to understanding the distinction between law and policy.

The greater segment of society is not anywhere concerned with law any more than policy. Put another way, people give more weight to policy than law — particularly so because practically every move taken by either faction of the Senate we have now is reduced to a judicial controversy only a Supreme Court could resolve. In the process, the High Tribunal is overburdened as the final arbiter of the errors, nay, excesses that the legislature commits.

Still, there’s no denying the validity of Holmes’ 1880s contention, to the effect that, “in substance the growth of the law is legislative” and Hayek considered laws as “instructions to administrators” however they actually “sounded too official, unilateral, hierarchical, authoritative and bordered on the authoritarian.” Whereas, public policy is “more human and not as divine,” sometimes even described as a “renaissance in the democratizing twenty-first century.”

Come to think of it, that lightning coup that displaced Sotto by 13 votes of all the Senate membership of 24; the running chase of a senator with a reported standing ICC warrant; the myth of Senate protective custody; the escape of Bato under cover of gunfire and darkness; the suspension of the Sergeant-at-Arms by the Ombudsman, the walkout of the new minority; the absence without due notification of the ruling majority from session days; the quorum of the Gatchalian-led minority declaring all seats vacant with all members of the majority in absentia; the almost aborted committee hearing of the BRC with the 18 ex-Marines; the legal maze created by one faction’s act over another — all these are a matter of policy than of law.

Thus, the so-called “reference for preference” in the words of Theodore J. Lowi (2003) ought to be on the weight of policy rather than of law. That view is anchored upon five points, namely, 1) law and policy as synonymous, 2) democratization favored public policy over law, 3) law seems too authoritative for democracy, 4) agency law making as an accusation for government to violate the separation of powers, and 5) policy holds out hope that government be more participatory.

To paraphrase with a distinct modification Woodrow Wilson, ergo, we are not “in search of legal principles.”