[Beijinger]

No law, no crime. [nullum crimen sine lege]

If aliens land in Germany on a field and a peasant shoots them with his shotgun, he would have committed no crime in my opinion. No murder, since Aliens are not humans. It would not be illegal hunting, since aliens are not animals. Illegal discharge of a firearm?

In the US the outcome may be very different.

[impossiblefork]

That is definitely not how German law would deal with the situation in practice. Aliens would certainly be considered people and protected by the law, even if they weren't humans, and they would definitely still be animals.

Shooting an alien robot though, then you would have something legally problematic. Ownership? Is it so advanced it's a person? But you'd probably get something like those Star Trek episodes with legal weirdness rather than any no-crime-without-law reasoning.

[Beijinger]

You don't understand the problem. If we encounter aliens, they would likely make a law to protect them. In the situation I came up with, this is their first encounter with us, and they would NOT be protected.

You are very optimistic that they will be considered animals. For example they would have to live on organic matter. And they would have to have a spine to get more protection since living things with a spine are considered more valuable (Wirbeltiere).

GROK (And using all the Roman law principles on what German law is based):

Nullum crimen, nulla poena sine lege (Art. 103 Abs. 2 Grundgesetz + § 1 StGB) is the decisive wall that the prosecution would smash into in a real first-contact case under current German law. This principle has four sub-requirements (all must be fulfilled for a conviction):

Lex scripta – there must be a written statute → Yes, §§ 211, 212 StGB exist.

Lex certa – the statute must be sufficiently precise → “Mensch” is precise if you are Homo sapiens. It is not precise (in fact completely indeterminate) when the victim is an unknown extraterrestrial species.

Lex stricta – no punishment by analogy, no extension to the detriment of the defendant → This is the killer. → Extending the word “Mensch” in §§ 211/212 to include extraterrestrials would be a clear case of forbidden analogy that worsens the legal position of the accused. → German courts are constitutionally barred from doing this in criminal law (unlike in civil law or constitutional law, where they sometimes stretch concepts to protect victims).

Lex praevia – the law must have existed before the act → Also fulfilled, but irrelevant here.

[impossiblefork]

Ah. Yes. You are right. I had to read the law. I can understand the choice to write 'human' there, it becomes very clear, assuming there will be no aliens.

[afiori]

Anyway this is a matter of judicial discretion to decide whether personhood and rights would apply to an alien visitor.

The only difference between precedent laws and codes is that the judges act as a secondary less stable legislature.

You could very well have a mixed system where legislature has to filter and ratify court rulings to decide which become law and which do not.

In short this has nothing to do with having actual laws

[Beijinger]

You don't understand the problem. If we encounter aliens, they would likely make a law to protect them. In the situation I came up with, this is their first encounter with us, and they would NOT be protected. You are very optimistic that they will be considered animals. For example they would have to live on organic matter. And they would have to have a spine to get more protection since living things with a spine are considered more valuable (Wirbeltiere).

GROK (And using all the Roman law principles on what German law is based):

Nullum crimen, nulla poena sine lege (Art. 103 Abs. 2 Grundgesetz + § 1 StGB) is the decisive wall that the prosecution would smash into in a real first-contact case under current German law. This principle has four sub-requirements (all must be fulfilled for a conviction):

Lex scripta – there must be a written statute → Yes, §§ 211, 212 StGB exist.

Lex certa – the statute must be sufficiently precise → “Mensch” is precise if you are Homo sapiens. It is not precise (in fact completely indeterminate) when the victim is an unknown extraterrestrial species.

Lex stricta – no punishment by analogy, no extension to the detriment of the defendant → This is the killer. → Extending the word “Mensch” in §§ 211/212 to include extraterrestrials would be a clear case of forbidden analogy that worsens the legal position of the accused. → German courts are constitutionally barred from doing this in criminal law (unlike in civil law or constitutional law, where they sometimes stretch concepts to protect victims).

Lex praevia – the law must have existed before the act → Also fulfilled, but irrelevant here.

[afiori]

I still do not get what this has to do with whether judges act as a secondary legislature

[andrewflnr]

How do you think that bears on my post, which is a variation on "please write the damn law, but in a sensical way please"?

[Beijinger]

You can't write a law for every possible situation. And many laws were introduced because they were committed, and they realized, there is no law to punish the person.

English common law had many good ideas. The US criminal system may be a mess, but the underlying ideas are good. Not everybody can be Norway.... ;-)

[afiori]

I am pretty sure that hunting laws would apply