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.

As a drafter, you work with a lawmaker in a relationship of trust. You look out for the lawmaker's best interest and you are thorough and candid. You warn when a proposal looks sloppy or problematic or unconstitutional. Ultimately, of course, the drafting projects belong to the lawmakers. They choose whether to move a policy forward; you help them choose with open eyes.

A drafter should be "policy neutral". When you have a policy agenda, it clouds your judgment; when others suspect you of having an agenda, it ruins your credibility. So do not advocate a policy; do not do so directly or indirectly; do not give the appearance that you are doing so. Do not give your opinion about the merits of a policy if asked—even if pressed. When you decline to say how you feel, you are being professional. When lawmakers can’t even guess how you feel, you probably have it about right.

You must have a mastery of the language. You must also have a working knowledge of the country's laws. (You do not need to know every clause and every volume, but you must understand their general structure, scope, and contents, and how to navigate and use them.) You must be familiar with the legal and political processes that govern how laws are made, and you must understand how the highest courts  go about their business of interpreting the laws.

You must be a "people person", able to engage a lawmaker, ask tough questions, and hear and appreciate the answers. You must be tactful, candid, sensible, humble, patient, and pragmatic.

You must also be an "idea person", able to master a policy and understand its boundaries and limitations. You must be able to foresee situations that, though unlikely, might cause the policy to break down. You must be alert, flexible, creative, inquisitive, and skeptical.

An ideal draft has two features: it accurately reflects the policy, and it is legally sufficient to carry out that policy.

The legislative process being what it is, there is rarely enough time to achieve an ideal draft. In the real world, lawmakers have policies that are complicated or less than fully formed, and need them reduced to writing not in weeks or days but in hours or minutes. The policy may not be fully developed; the policy may be based on factual or legal assumptions that either are not confirmable or are not in fact correct; the lawmaker may insist on using words that are politically useful rather than words that are clear. There are many reasons why an ideal draft cannot be achieved.

In many cases all you can do is add as much value as you can under the circumstances. Learn as much about the problem, the context, and the proposed solution as you can. Review various approaches where you can. Spot as many issues as you can. Discuss them with the lawmaker as best you can. Deliver a draft that, under the circumstances, is as faithful and effective as you can make it. To the extent you have concerns about whether the draft is faithful and effective, articulate those concerns.

Those are the steps in the drafting process. In a legislative emergency, you may cycle through those steps only once, and only fleetingly. When not in a crisis, you may cycle through those steps a dozen times or more.

Drafts can be failures for two reasons: Some are failures of communication, while others are failures of imagination.

When there is a failure to communicate, the draft is not clear. The problem is on the page and evident to the naked eye. The Guidelines will help you communicate: they have techniques to make a draft simple, plain, brief, consistent, and readable. These are necessary and important goals, but they are the easy goals to achieve.

When there is a failure to imagine, the problem is not on the page. The words look fine, but the thinking behind them is less than thorough. A failure to imagine cannot be cured by using the right word; it can be cured only by thinking through the policy.

To think through the policy, you must engage the lawmaker with questions. You must figure out the problem and the objective. You must map out the entire landscape of the policy, all the details, large and small. You must research the law, analyse the alternatives, and create a coherent solution. Finally, you must conduct a reality check.

Before you do any of that, however, you must adopt a posture of skepticism. You must be able to develop tough questions and be willing to ask them. The questions do not come from looking at words on a page; they come from taking everything with a grain of salt. Information may be wrong; assumptions may not hold; facts may shift; laws may overlap; people may disobey.

The lawmaker comes to you with a prejudged sense of what needs to be done. Do not take that sense at face value: Respect it, but do not accept it. Lawmakers do not always think through the policy and, when they do, they do not always do it thoroughly. In many cases the lawmaker simply starts with the recommendations of a third party. The recommendations may be sound, they may be unsound, or they may be misleading. What the lawmaker needs most from you is critical thinking and independent, frank advice. Do not surrender your judgment.

Be skeptical. Question assumptions. Imagine scenarios that might unfold and discuss them. In many cases the lawmaker will have a firm sense of how a scenario should be handled. Above all, use good judgment to decide when you have done enough. At some point you are not adding value so much as splitting hairs.

You have to pick your battles. Sometimes you don’t have time; sometimes the lawmaker doesn’t have patience. But you have a duty not to be a “yes man” or a scrivener.

Of all the steps in thinking through the policy, the "reality check" is the most important. Always consider whether the policy can be given practical and legal effect. A policy that sounds good but doesn’t work can embarrass the lawmaker and cause problems down the road.

A law may be legally sufficient but nonetheless be ineffective as a practical matter: the law may be difficult to administer or enforce, or it may not adequately cover all contingencies, or it may not provide enough incentives to ensure people conform. In short, it may not fit reality. This is not a question of whether it is a good idea or a bad idea, but whether it is a well-formed idea.

There is no easy process for figuring out if a policy is workable. You need to hold a brainstorming session. Ponder the policy from as many angles as you can. If you had to administer it, does it provide enough guidance? If you had to comply with it, can you tell what is, and is not, allowed?

In the ordinary case, does everything seem to work? Does it do what is needed? Does it refrain from doing anything else? Does it lead to any absurd results? What sort of effect will it have on institutions, people and society? Does it rely on assumptions that may not be valid now, or may not hold in the future?

And so much for the ordinary case. Does it still work adequately in an extraordinary, but possible, case? Imagine people and events and contingencies that might cause problems. Find out if the policy still works; find out where the gaps, the uncertainties, and the contradictions are.

Laws that are not thought through properly generate enormous social and economic costs. They also take a toll on the political system and the judicial system. Drafters are the first line of defense against these costs and tolls: their work is to make sure each new law has had as much scrutiny as possible. Though each statute is born new, it should work as if seasoned and old.

As you think through the policy, bear in mind that the main purpose of almost every law is to regulate the conduct of people--that is, to specify what is prohibited, what is allowed, and what is required. With every drafting project, you must, at a minimum, identify what is prohibited, what is allowed, and what is required.

One very common problem with laws is a failure to answer the question, "who does what?" Such a law is not directed at people: "there shall be a chicken in every pot"; "dogs are not allowed on the grass"; "a school bus must stop at a railroad crossing". The lawmaker should be asked to identify the people--officials? dog owners? bus drivers?--who are to be held accountable.

Another very common problem with laws is a failure to answer the question, "so what?". Such a law covers some sort of behaviour but does not specify what the incentives or consequences are: "the Director shall submit a report"; "a person may not walk on the grass". The lawmaker should be asked to identify what happens if there is a violation, criminal punishment? civil liability? a forfeiture of some right or privilege? The "nonanswer" is common: the lawmaker wants to let the courts decide, or wants the law to be aspirational only. It is always better to obtain a "nonanswer" than to not ask at all.

Once a policy has been thought through, it is time to put pen to paper and words to the page. Your focus turns from clarifying the policy to expressing it in the most effective way.

No dwelling here on how to do so; that is what the Guidelines are for. Simply put, every law should be simple, plain, brief, consistent, and readable. Every law should be organized in a way that is sensible and intuitive. Above all, every law should be clear.

Writing clearly provides two very important benefits. First, a clear draft is an accurate draft. Take a clear draft and show it to the lawmaker. Because the draft is clear, by definition it has only one meaning; it can be read in only one possible way. After reading it, the lawmaker can only accept it as accurate or return it with an explanation of what is not yet quite right (or perhaps abandon the project).

Second, clear writing ensures that the draft, if enacted into law, carries out the policy effectively and efficiently. If the law is not clear to the officer responsible for carrying it out, the officer might carry out the policy in a way the lawmaker did not intend—or might not carry it out at all. If the law is not clear to those affected by it, they might be unsure how to comply. Disputes might follow, and the courts might interpret the law in a way that the lawmaker did not intend—or might void it altogether.

So you must be able to draft with great clarity. Until and unless the lawmaker instructs you otherwise, you should draft on that basis. And as part and parcel of being able to draft with great clarity, you must also be able to spot every way in which a draft is not clear.

Most policies deal with matters that have been the subject of one or more previous laws. A new measure must be carefully related to earlier laws to produce, as far as possible, a consistent body of law that will achieve the policy without producing unintended consequences.

Always ask: In what way does the new policy relate to existing law? The answer will have a major effect on how you draft, and you can't be sure of the answer until you have a thorough understanding of the policy and the existing law.

You might even find that the policy is already realized, in whole or in part, by existing law. Or that the lawmaker did not have a full understanding of what existing law is. Every once in a while, you find that the law has already been changed to fit the policy, someone else already achieved it, perhaps so recently that your lawmaker hadn't yet heard.

Then again, you might find that the policy can be achieved only by amending or otherwise affecting existing law. If so, you have some important choices to make about which law to amend (or otherwise affect) and precisely how to do so.

You must decide how best to position the new provisions so that they will have the effect, and the relationship with other laws, that suits the lawmaker's needs. In deciding this, you must consider whether to draft a freestanding law or an amendatory law or, perhaps, a law that contains both freestanding and amendatory provisions.

You can affect other laws even when you don't mean to do so. Once a draft becomes a law, it becomes part of the context against which all other laws are interpreted. If you aren't disciplined and responsible, you can cause damage to that context, and that damage can cause problems for you, for other drafters, and ultimately for the system of laws as a whole.

Some lawmakers, for example, like to include a series of standard, formulaic provisions that they have borrowed from elsewhere, without considering whether those provisions are truly needed. They reason that it is "harmless" to do so. But when courts interpret one law, they consider other laws, too. They take note of differences and assume that each difference has significance. When a legislature sends mixed signals over time, principles that were settled can become unsettled; the "harmless" provision can take on a life of its own.

In short, every provision has some effect on the statute book, primarily on the immediate Act of which it is a part, but also on the background against which all laws are read. If a provision does not affirmatively add value, it should not be used.

Avoiding damage to the statute book is about understanding the principle that your draft has not only immediate, direct effects, but also long-term, systemic effects. Many lawmakers readily grasp this principle, and find it sensible, once you bring it to their attention. And when you internalize this principle yourself, congratulations, you are well on your way to mastering the work of the drafter.