Extended Summary

This inquiry examines how the institutional transformation of German employment relations is materially produced through the legal apparatus and what exclusions this production carries. The comparative employment relations literature provides robust analyses of marketisation, the shift from voice to exit, and institutional hollowing-out at the macro-institutional level. Yet how these mechanisms materialise through legal reasoning practices, within what temporality they are produced, and what they silence remain largely unaddressed. This inquiry intervenes in that gap by bridging two bodies of scholarship that have developed largely in parallel: macro-institutional analyses of German employment relations and legal constructivist accounts of how law constitutes labour markets.
The conceptual architecture draws on Karen Barad’s agential realism as transposed into legal theory by Margaret Davies. Davies demonstrates that court decisions are not representational tools but material-discursive practices that enact specific legal persons, relationships, and boundaries with tangible consequences. Within this framework, court decisions are understood not merely as dispute resolution mechanisms but as an apparatus that produces what counts as an employment relationship, which claims to protection hold legitimate legal ground, and which flexibility practices remain within the legal framework. Each decision realises certain possibilities while excluding others, and grounds this exclusion on legitimised legal terrain. The study adopts diffractive reading as its onto-methodological orientation: decisions from different periods, courts, and legal domains are read through one another to trace the interference patterns they produce, rather than being organised chronologically or thematically.
The empirical material consists of approximately 250 court decisions spanning 2003 to 2025, translated into Turkish by Alpay Hekimler and published in the journal Çalışma ve Toplum. This translation corpus constitutes a distinctive channel of access to the judicial dimension of German employment relations in the Turkish-language scholarship. The decisions selected for diffractive reading are those that enter into productive diffraction with the theoretical framework developed above. The study does not claim representativeness; its aim is to trace the interference patterns that emerge when court decisions are read through the macro-institutional literature on marketisation.
Five diffractions structure the inquiry. The first cut traces the temporality of institutional dissolution, in which the legal apparatus draws protective boundaries only after the norms it protects have already been structurally eroded. The Federal Labour Court’s questioning of its own precedent on mass dismissal sanctions, the European Court of Justice’s separation of procedural obligation from individual protection, and the Federal Constitutional Court’s granting of a two-year transition period despite finding unconstitutionality together produce a temporality in which protection arrives after erosion has already taken hold. The second cut examines how the worker category simultaneously expands in scope and tightens in normative demands: while platform workers are drawn into the category through equipment provision obligations, workers already within the category face intensified behavioural and bodily surveillance norms produced through judicial decisions on tattoo-related illness, social media evidence, and detective monitoring. The third cut traces the individualisation of collective voice through digital access restrictions on trade unions, jurisdictional channel structures that frame collective claims as individual disputes, and corporate form transformations that place escape mechanisms beyond the reach of judicial scrutiny. The fourth cut interrogates the boundary between enterprise interest and individual risk in occupational accident insurance, where the distinction between protected and unprotected bodily needs emerges not a pre-existing reality but as a product of each decision. The fifth cut traces the legal sedimentation of temporary agency work, following how the apparatus laid the legal ground for this employment form, enabled firms to use it, constrained it only after collective voice mechanisms had been effectively neutralised, and wrote the history of the damage it had sanctioned into the reasoning of its own restrictive decisions.
The results yield three insights that could not have been derived from either the macro-institutional literature or the court decisions alone. First, the temporality of institutional transformation is not a background condition but a productive dimension of the legal apparatus. Second, the individualisation of collective voice operates not only through firm strategy but through the specialised architecture of jurisdictional channels. Third, the protection norm does not merely regulate the employment relationship; it ontologically constitutes the relationship it protects. The study also identifies structural silences: mechanisms central to the marketisation literature, such as mini-jobs and opening clauses, find no expression as court decisions, remaining beyond the apparatus’s field of vision. The declining number of cases reaching German labour courts further suggests that the individualisation process begins before the judicial arena, at the stage where the dispute itself is framed.
The inquiry contributes to comparative employment relations scholarship by introducing a new materialist onto-epistemological lens that brings into the field of inquiry what macro-institutional analyses leave unaddressed: the material-discursive practices through which the legal apparatus produces the institutional reality it ostensibly regulates.