Gavin Howe
The legal systems of the United States and the European Union have distinct features, with the US system characterised by a more fragmented and malleable adversarial legalism. EU law differs from American law in several key ways, including the political nature and remedial powers of judiciaries, levels of adversarial legalism, and the content of laws central to citizens' lives. EU member states are independent countries that retain responsibility for more policy areas than US states, and EU regulations are adopted by legislative institutions, while US regulations are issued by the Executive. Differences also arise from the historical development of each legal system, with most European countries (excluding Ireland and the UK) basing their laws on French/Napoleonic law, while the US follows English common law.
| Characteristics | Values |
|---|---|
| Procedure to adopt federal laws/regulations | US: Bills passed by Congress (legislative process) |
| EU: Made by executive departments and agencies (rulemaking process) | |
| Environmental policy | US: Federal laws and regulations serve as a minimum standard; states can adopt more stringent rules |
| EU: Countries encouraged to adopt higher standards, but these cannot jeopardize the functioning of the Single Market | |
| Political nature and remedial powers of judiciaries | US: High levels of adversarial legalism |
| EU: Less adversarial legalism | |
| Tort law | US: Uniquely threatening |
| Social provision and employee protections | US: More limited rights |
| Tax law | US: Less demanding obligations |
| Criminal sanctions | US: More punitive; more permissive gun laws |
| Data privacy laws | US: No comprehensive data privacy law; various regulations governing different sectors and types of data |
| EU: General Data Protection Regulation (GDPR) sets a high bar for privacy protection | |
| Legal system | US: Based on English/common law |
| EU: Based on French/Napoleonic law (except Ireland and the UK) |
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What You'll Learn
Data privacy laws
In contrast, the US lacks a single, comprehensive federal data privacy law that applies uniformly across all states and companies. Instead, it takes a fragmented, sector-specific approach with various regulations governing different sectors and types of data. For example, the Health Insurance Portability and Accountability Act (HIPAA) protects sensitive patient healthcare information, while the Gramm-Leach-Bliley Act (GLBA) sets out standards for financial institutions to safeguard consumers' nonpublic personal information. While these laws provide some protection, they do not offer the same level of comprehensive coverage as the GDPR.
The US has traditionally favoured a more hands-off approach, prioritising the interests of companies that collect and use personal data for commercial purposes. However, this mindset is slowly shifting as data breaches continue to cause significant harm. While federal law has yet to address data security and processing to the same extent as the GDPR, some states have implemented their own similar policies. For instance, California passed the California Consumer Privacy Act (CCPA) in 2018, which offers protections for personal information that can be linked to a California consumer. Other states, such as Utah, Colorado, Virginia, and Connecticut, have also introduced consumer privacy laws.
The lack of a unified national standard in the US has led to a complex patchwork of state privacy laws, creating challenges for companies operating across multiple states and leaving some individuals without adequate rights over their data. This disparity has fuelled discussions about the need for comprehensive federal privacy legislation that aligns with global standards, such as the proposed American Privacy Rights Act (APRA).
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Environmental policies
The EU has demonstrated a commitment to achieving ambitious climate goals. For example, the EU aims to become the world's first climate-neutral continent by 2050, with a target of reducing net greenhouse gas emissions by at least 55% by 2030 compared to 1990 levels. The European Green Deal, launched in 2019, reflects the EU's priority on environmental concerns and includes objectives such as achieving climate neutrality, enhancing adaptive capacity, and transitioning to a circular economy.
In contrast, the US has faced criticism for its reluctance to engage with recent major MEAs (multilateral environmental agreements) and its failure to ratify important environmental treaties. However, it's important to note that the US continues to comply with environmental treaties signed in earlier periods. The resistance to international environmental law in the US is driven by ideological considerations, such as protecting US sovereignty, rather than solely economic factors.
While the EU has shown a willingness to take unilateral action to promote its environmental policy objectives, the US has actively resisted MEAs championed by the EU in recent years. This highlights the different preferences and commitments of the two entities regarding the stringency of environmental regulation.
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Health policies
The European Union does not usually intend to make health policies, but its laws and policies often impact healthcare services and health outcomes. EU member states are responsible for organising and delivering health services and medical care, but the EU does play a role in coordinating public health issues, especially in relation to the free movement of people and goods in the internal market.
EU health policies are authorised by different bodies of law, and there are three broad faces of EU health policy. The first is explicit health policies, justified under the treaty provision "Public health" and led by the Directorate-General for Health, known as DG SANTE. This includes hard powers in specific areas, such as blood products regulation, resources, and programmatic activity. The second face of EU health policy is the development of the internal market, which can impact health service delivery and regulation of industries that damage health, such as tobacco control. The third face is fiscal governance: European surveillance of member states' fiscal policies, including taxes, spending, and policies affecting the state's fiscal trajectory. This has been a particularly evolving and controversial aspect of EU health policy, with debates about its power and effectiveness in improving health.
In the US, health policies are a joint responsibility of federal and state governments. Federal laws establish requirements or prohibitions that apply throughout the country, while federal regulations clarify how agencies understand, implement, and enforce these laws. US regulations also interpret the provisions of laws, fill gaps, and further develop how laws will be implemented. For example, the Affordable Care Act (ACA) mandates that all citizens purchase health insurance, with partial funding through government subsidies, but insurance is not provided by the government. This is similar to the systems in the Netherlands and Switzerland. In contrast, the EU has a unique economic and political union between its member states, and EU regulations apply automatically and simultaneously in all member states. EU regulations are comprehensive pieces of legislation that can be supplemented by Commission delegated and implementing acts and national administrative rules.
While the EU and the US have different health policy frameworks, both have a significant impact on health service provision and health outcomes. The EU's health policies are shaped by its overall political direction and priorities, while the US system allows for more variation between states, with a federal baseline that states can build upon.
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Criminal sanctions
Firstly, the US and EU legal systems are inherently different. Most European countries (excluding Ireland and the UK) have a legal system based on French/Napoleonic law (also known as Roman law). This differs significantly from English (or common) law, which is used in the US, as it includes civil law. Civil law dictates the kinds of agreements between legal entities other than the government that are permitted. For example, civil law may outline how a Homeowners' Association (HOA) works, what it may decide for its residents, and how much contribution is allowed. If a contract deviates from or contradicts the law, the law takes precedence. Additionally, most European criminal trials do not involve juries.
Secondly, the US has a more fragmented, "adversarial legalism" approach to regulation, with powerful remedial judiciaries. This is in contrast to the hierarchically-organized European legal processes.
Finally, the US takes a more hands-off approach to data privacy, favoring companies that collect and use personal data. While the EU has established data protection as a fundamental right in the EU Charter of Fundamental Rights, the US has various regulations governing different sectors and types of data. For instance, the Health Insurance Portability and Accountability Act (HIPAA) protects patient healthcare information, while the Gramm-Leach-Bliley Act (GLBA) sets out standards to protect consumers' nonpublic personal information in the financial sector.
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Social provisions
The social provisions of EU law differ from American law in several key ways. Firstly, EU member states are responsible for more policy areas than US states, including health policies. While the US federal government sets a baseline for health policies, EU member states have more flexibility in reaching the goals set by EU directives.
Another difference lies in the level of social provisions and employee protections. American law provides more limited rights in these areas compared to EU law. For example, EU regulations like the General Data Protection Regulation (GDPR) set a high bar for privacy protection for individuals within the EU, while the US has historically taken a more hands-off approach, prioritizing the interests of companies that collect and use personal data. The US has multiple regulations governing different sectors and types of data, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Gramm-Leach-Bliley Act (GLBA), but lacks a comprehensive data privacy law covering all types of data and companies.
The EU's approach to environmental policy also reflects its emphasis on social provisions. While the US federal government sets minimum standards, EU directives encourage member states to adopt higher national environmental standards. However, these stricter rules cannot compromise the functioning of the Single Market or discriminate against goods and services from other EU countries.
Additionally, most European countries follow the French/Napoleonic legal system, which includes civil law governing agreements between legal entities. This differs from the common law system used in the US, which does not have an equivalent concept of civil law.
Overall, the EU's social provisions tend to be more comprehensive and protective of individual rights, while American law takes a more fragmented and limited approach in these areas.
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Frequently asked questions
The EU and US legal systems have distinct features, with the US system being more fragmented and malleable, characterised by ""adversarial legalism". In contrast, the EU system is more hierarchically organised. Some specific differences include:
- The US lacks a comprehensive data privacy law, instead taking a sector-based approach with various regulations like HIPAA and GLBA.
- EU member states have more policy-making power than US states, especially in areas like health policy.
- The US has more punitive criminal sanctions and more permissive gun laws.
US federal laws are passed by Congress and establish requirements across the US. Federal regulations are made by executive departments and agencies and clarify how laws are implemented and enforced. In the EU, regulations and directives are both legal acts adopted by EU institutions, but directives must be transposed into national law and are more flexible in terms of implementation.
Most European countries follow French/Napoleonic law, also known as Roman law, which includes civil law dictating agreements between legal entities. The US, on the other hand, follows English or common law, which is also used in the UK and NZ.
The EU has established data protection as a fundamental right in the EU Charter of Fundamental Rights, with the GDPR setting a high standard for privacy protection. The US has traditionally favoured companies collecting and using data and has a more fragmented approach with various sector-specific regulations. However, recent data breaches have led to a shift towards better protecting individuals' data.
