Drafting, writing and lawmaking
As for writing: a drafter does write, of course, but only at the final stage. A drafter writes laws like a school gives diplomas or a mountain climber plants flags, technically true, but missing the point.
As for policy: Yes, there will always be a few lawmakers who dabble in drafting; No, there should never be drafters who dabble in policy.
A drafter is there so that when a lawmaker proposes a policy, the drafter can run circles around it and poke it with a stick (intellectually, not literally). The drafter asks questions and probes for problems--factual problems, legal problems, "worst-case scenarios".
Suppose, for example, a lawmaker wants "a chicken in every pot". If the drafter is merely a writer, the work is easy: "There must [or in some traditions, 'shall'] be a chicken in every pot." But the drafter is not merely a writer.
Drafters do not care whether "a chicken in every pot" is a good idea or a bad idea; that's what lawmakers are for. But they do care whether "a chicken in every pot", as an idea, is fully formed. Drafters ask questions ...
- What kind of chicken?
- What kind of pot?
- Who provides the chicken, and when, and where, and how?
- Is it one chicken per pot, or one chicken per person who owns a pot, or one chicken per household with a pot?
- If I own more than one pot, do I get more than one chicken?
- Who pays for all this?
- What happens if there is a violation?
- What happens if the person doesn't want the chicken?
- What happens if there is a chicken shortage?
- What are the tax consequences of receiving the chicken?
... and drafters want answers. The lawmaker may give an answer, or may give a nonanswer (such as "let the courts decide"). The work of the drafter is not to require answers, but to create opportunities to provide answers, and then to write accordingly.
Drafters are a public good. They add value; they spot problems. They make lawmakers better informed. They make laws simple, orderly, and clear.
Around the world, drafting is a resource in short supply. And so around the world, drafting is done by a wide variety of people: professionals and amateurs; experts and novices; public servants and private citizens. Some drafters are lawyers and some are not, but for some tasks, depending on the jurisdiction and its tradition, being a lawyer is useful or even required.
