The Rule of Law, Positive Discrimination and Law No. 6284: Does Equality Always Mean the Same Treatment?

The rule of law is often summarized as “everyone being equal before the law.” This summary is correct, but incomplete. In modern legal systems, equality does not simply mean treating everyone in the same way. In some situations, differentiated protection mechanisms may be necessary so that individuals or groups who are disadvantaged in real life can actually access their rights.

At this point, there may appear at first glance to be a tension between the rule of law and positive discrimination. If the law is to be applied equally to everyone, why should special protection be granted to certain groups? This question becomes particularly important in areas such as violence against women, domestic violence, the protection of children, the rights of persons with disabilities and economic or social disadvantages.

Formal equality and substantive equality

Formal equality means applying the same rules to persons who are in similar situations. This approach is indispensable for legal certainty. The fact that laws are predictable, clear, general and free from arbitrariness is among the basic requirements of the rule of law.

The World Justice Project also explains the rule of law through the principles of accountability, just law, open government and accessible, impartial justice.

However, formal equality does not always lead to a just outcome. This is because people do not begin the legal process under the same conditions. A victim of violence, an economically dependent person, a child, a person with a disability, an elderly person or a group exposed to systematic discrimination may appear in theory to be able to exercise a legal right, but in practice may not be able to benefit from that right.

This is where substantive equality comes into play. Substantive equality focuses not only on the rule being the same, but on the right being actually usable. In recent equality literature, it is often emphasized that formal models that appear “fair” may produce unjust results when they fail to account for structural disadvantages. Even in debates on algorithmic justice, for example, Ben Green argues that a formal justice approach can sometimes make inequality invisible rather than eliminating it, and that a “substantive justice” perspective is therefore necessary.

This distinction is also important from the perspective of legal philosophy. In Rawls’s theory of justice, equal liberties are taken as a starting point, while social and economic inequalities are considered legitimate only to the extent that they work to the benefit of the least advantaged and are compatible with fair equality of opportunity. This approach offers a strong starting point for understanding the philosophical basis of positive discrimination: the aim is not to forcibly pull everyone into the same line, but to make heavy inequalities at the starting point legally visible.

Is positive discrimination contrary to the rule of law?

When designed properly, positive discrimination is not contrary to the rule of law. On the contrary, it ensures that the law is effective not only for the powerful, but also for those who need greater protection.

This idea is also reflected in international human rights law. Within the framework of CEDAW, “temporary special measures” are treated as tools aimed at accelerating women’s achievement of de facto equality. They are not viewed as an exception to the prohibition of discrimination, but as a necessary strategy for achieving substantive equality.

The critical boundary here is this: positive discrimination must not turn into arbitrariness. The rule of law requires even a well-intentioned protective measure to remain tied to clear law, proportionality, supervision and procedural guarantees. In other words, positive discrimination does not mean “granting unlimited superiority to one group.” Legitimate positive discrimination means measures aimed at eliminating disadvantage, with a defined purpose, limited scope, supervision and openness to judicial review when necessary.

Where does Law No. 6284 stand in this discussion?

Law No. 6284 on the Protection of the Family and the Prevention of Violence Against Women establishes a special protection regime in Turkey for persons who have been subjected to violence or are at risk of violence. The law regulates protective and preventive measures particularly in the context of violence against women and domestic violence.

The philosophical foundation of Law No. 6284 is different from criminal proceedings. Criminal proceedings investigate an act alleged to have been committed in the past and require a high standard of proof in order to impose a sanction. Protective measures under Law No. 6284, however, are often aimed at preventing future harm. Therefore, at the center of the system is the idea of “protection before the risk materializes.”

This distinction is important. In cases of violence, the danger often arises in private spaces, without witnesses and under conditions where the victim is under economic or psychological pressure. If one acts with the classical logic of evidence, the law can often step in only after the harm has occurred. The purpose of protection law, however, is to prevent harm from arising if possible, before compensating for it afterward.

In this respect, Law No. 6284 is based more on a substantive equality perspective than on formal equality. The law tries to see the person under risk of violence not in the abstract, but together with the concrete power relationship in which that person is situated.

The delicate balance from the perspective of the rule of law

Nevertheless, sensitivity to the rule of law must always be preserved in the implementation of Law No. 6284. A protective measure may be issued quickly; but speed must not mean arbitrariness. The purpose of the measure is not punishment, but protection. This distinction must be kept clear in practice.

Three balances are particularly important from the perspective of the rule of law.

First, the victim’s right to life, bodily integrity and safety must be protected effectively. When threats of violence are not taken seriously, the law fails to fulfill its most basic function: protecting the person.

Second, the person against whom a measure is applied also has procedural rights. The scope, duration, basis and possibility of objection to the measure must be clear. The rule of law is an order that not only protects the victim, but also offers a reviewable legal path to the person affected by the measure.

Third, the language of implementation must be established carefully. Law No. 6284 should be understood not as a mechanism of “presumed guilt,” but as a risk-prevention mechanism. A protective measure and a criminal conviction are not the same thing. If this distinction is not explained correctly, both the legitimacy and the social acceptance of the law may be harmed.

Does the possibility of abuse invalidate the legal idea of positive discrimination?

Like every legal mechanism, tools of positive discrimination can also be abused. However, the possibility of abuse does not require the total rejection of the protection mechanism. Otherwise, many avenues for seeking rights in areas such as criminal law, enforcement law, family law or employment law would also become controversial because of the possibility of abuse.

The correct approach is not to abolish positive discrimination, but to make it compatible with the rule of law. The way to do this is to strengthen the principles of transparency, reasoning, supervision, time limitation, effective objection and proportionality in practice.

Indeed, an academic study examining online debates around the Istanbul Convention and Law No. 6284 shows that the debates in this field have not only a legal dimension, but also a dimension of social polarization and disinformation. The study notes that some online campaigns may shift the focus and target protective regimes concerning women’s rights under different ideological headings.

Therefore, in order to have a healthy debate, it is necessary to avoid both extremes. On one side, it is not correct to treat Law No. 6284 as an untouchable, unquestionable and absolute field. On the other side, it is also incomplete and dangerous to ignore the risk of violence and women’s structural need for protection, and to present protection law as “inequality” in its entirety.

The rule of law is not only neutrality, but effective protection

The rule of law does not mean that the state remains equally distant from everyone. Sometimes the state must act more actively in order to protect a person whose freedom and safety are actually under threat. But this active role must always remain within the law.

For this reason, Law No. 6284 is an important example from the perspective of legal philosophy. On one side there is the urgency of the risk of violence; on the other, procedural guarantees. On one side there is the need for substantive equality; on the other, the prohibition of arbitrary action. On one side there is the protection of the victim; on the other, the legal certainty of the person subject to the measure. A just legal order does not avoid these tensions; it manages them openly.

Conclusion

Positive discrimination does not have to be the opposite of the rule of law. On the contrary, when applied within proper boundaries, it transforms the rule of law from a formal claim of equality into an effective instrument of justice in real life.

In this framework, Law No. 6284 is not merely a matter of family law or criminal law. It is also a rule-of-law test concerning how early, how effectively and how fairly the state can act in the face of the risk of violence.

The answer to this test lies on the line between protection and arbitrariness. The law must not leave the victim of violence alone; but while doing so, it must not abandon reviewability, proportionality and fair procedure. True rule of law is an order capable of carrying these two obligations at the same time.