Part 1 of 14
Theoretical Foundations and Legal Concepts of Montenegro
Legal personality, continental tradition, sources of law
Montenegro's legal system is rooted in the continental European legal tradition based on Roman law. This system differs significantly from common law jurisdictions, prioritising codified statutory legislation over judicial precedent. Since gaining independence in 2006, Montenegro has carried out substantial reforms to its justice system, particularly in the context of harmonisation with European Union standards. Understanding the state structure and legal system requires both theoretical knowledge of foundational principles and practical context regarding how institutions operate.
Legal Personality in Montenegro's Legal System
The Concept and Distinction Between Legal Capacity and Capacity to Act
Legal personality is one of the fundamental concepts in any legal system. In Montenegro, as in other continental legal systems, legal personality establishes who may be a subject of rights and obligations. This concept comprises two key components: legal capacity and capacity to act.
The potential ability of a person to hold subjective rights and bear obligations. This is the basic legal characteristic that arises at birth and ceases at death. An important feature of legal capacity is that it cannot be restricted or taken away — all people have the same scope of legal capacity regardless of their social status, nationality, or other factors.
The ability of a person to acquire rights and fulfil obligations through their own actions, and to bear responsibility for those actions. As a general rule, a person is recognised as having full capacity to act upon reaching the age of majority — 18 years. Capacity to act has a volitional, conscious character and depends on age and mental health.
Key distinction: legal capacity provides the possibility of holding rights and bearing obligations, while capacity to act is the ability to exercise those rights through one's own actions. Legal capacity includes a basic set of rights for everyone, while capacity to act allows one to expand that set according to one's own wishes.
Legal Personality of Legal Entities
The legal personality of legal entities has its own characteristics. Unlike natural persons, the legal capacity and capacity to act of legal entities arise simultaneously — from the moment of state registration — and cease upon liquidation. The scope of a legal entity's legal capacity depends on whether it is a commercial or non-commercial organisation.
According to Article 23 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, the legal capacity of a legal entity is determined by the legislation of the state under whose laws it was established. This provision is of great importance for international legal relations and for determining the legal status of foreign legal entities on Montenegrin territory.
Montenegro's Continental Legal Tradition
Montenegro belongs to the continental legal family, which has its roots in Roman law. This legal tradition is reflected in the structure of the country's legal system, based on codes and systematised legal acts. The Constitution, adopted on 19 October 2007, occupies the highest position in the hierarchy of legal acts, followed by international treaties, laws, and subordinate legislation.
Article 9 of the Constitution of Montenegro establishes that ratified and published international treaties and generally accepted norms of international law form an integral part of the national legal order and take precedence over national legislation. This provision reflects the openness of Montenegro's legal system to international law.
Montenegro's legal system also reflects the continental law approach to dispute resolution. For example, in 2015 Montenegro adopted the Law on Arbitration, based on the UNCITRAL Model Law, which governs the arbitral resolution of disputes. The core principles of this law are equality, party autonomy, and due process, consistent with the fundamental principles of the continental legal tradition.
Legal Norms and Constitutional Provisions
The Constitution of Montenegro defines legal norms as rules of conduct upheld by the coercive power of the state. According to constitutional principles, all citizens and persons present on the territory of the country are obliged to comply with the Constitution and the law.
The Constitution guarantees a wide range of rights and freedoms, including the right to equality before the law, personal inviolability, and the right to a fair trial. Particular attention is paid to the rights of national minorities and other small ethnic communities, who are guaranteed protection against forced assimilation and the right to preserve their cultural identity.
In the area of property rights protection, the Constitution establishes that no one may be deprived of or restricted in their property rights unless this is required by public interest and subject to appropriate compensation. The right of inheritance is also constitutionally protected. These provisions reflect Montenegro's commitment to the principles of the rule of law and the protection of private property.
Contemporary Challenges for the Legal System
Despite having a developed constitutional and legal framework, Montenegro faces a number of challenges that affect the functioning of its legal system.
In December 2023, the country experienced an acute political crisis related to the powers of the Constitutional Court. The ruling majority in parliament adopted decisions that, in the opposition's view, exceeded the constitutional powers of the legislative branch. This crisis caused concern not only within the country but also from the international community. The US Embassy in Podgorica called on Montenegrin authorities to act strictly in accordance with the Constitution and laws, while the European Union warned that such decisions jeopardised Montenegro's EU integration.
This situation underscores the importance of upholding the principle of separation of powers and the rule of law for the functioning of the legal system. It also demonstrates how political processes can influence legal institutions, and highlights the need to strengthen the independence of the judiciary.
Conclusion
The theoretical foundations of Montenegro's legal system include fundamental concepts of legal personality that distinguish between the legal capacity and capacity to act of natural and legal persons. Montenegro, belonging to the continental legal family, has a clear hierarchy of legal acts headed by the Constitution, and functions as a unitary state with a parliamentary form of government. Understanding these theoretical foundations is essential for studying Montenegro's legal system and its place within the European legal space.
The further development of Montenegro's legal system will likely focus on harmonisation with European Union legislation in the context of the country's aspirations to EU membership, as well as on strengthening democratic institutions and human rights protection mechanisms.