Ma Xiwu (1899–1962)

The judicial thought and practice of Ma Xiwu has had great influence on the importance and style of mediation in the People's Republic of China. Ma was a key figure in Communist Party attempts to combine a socialist revolution with administrative consolidation during the late 1930s and the early 1940s. Although Ma's influence is now in decline, he played a vital role in the development of ideas of informal justice within China's socialist legal system and in the decisive years of revolution enabled the Party to avoid excessive reliance on legal work on the institutions and experience of the Soviet Union.

Ma was born into a peasant family in Bao'an (now Zhidan) County in Shaanxi province. He began his career as a socialist revolutionary in 1930, formally joined the Chinese Communist Party in 1935, and played an active role in the creation of the Soviet border region. Although possessing only limited legal training, Ma specialized in legal issues and developed what became known as the Ma Xiwu adjudicatory style (Ma Xiwu shenpan fangshi), incorporating many principles of informal justice, including an emphasis on mediation. After 1949, he rose to become a vice president of the Supreme People's Court and a member of the National People's Congress.

Ma developed a considerable reputation for being a skilled decision maker in his handling of both civil and criminal cases in circuit hearings he conducted while serving as a special commissioner (zhuanyuan) and head of a branch court in the border region. In the course of his work, Ma encouraged the development of a system of on-the-spot trials (jiudi shenpan) and circuit tribunals (xunhui fating, or paichu fating). Both procedural innovations were (and still are) intended to enable ordinary people to enjoy greater access to, and direct contact with, the courts. This access enhances the masses' understanding of policy and law and permits courts to be able to handle cases with the active, direct involvement of local people. One can still find traces of the policy of engagement with the masses in a system of inspectors sent out periodically by the National People's Congress to investigate the enforcement of laws and related issues at the local level.

Although primarily influential in the area of civil justice, Ma's thinking and practical work extended to criminal matters, where he also assisted in the development of a distinctively Chinese socialist style of decision making. In this area, he encouraged—as a parallel to the mediator in civil cases—the use of people's assessors (renmin peishenyuan) as lay judges. He also promoted a lay element in evidence gathering. He advised judges to rely on the masses for collecting material evidence, albeit with a degree of skepticism since the masses lacked adequate understanding of investigatory techniques.

He advised adjudicators (shenpanyuan) to adequately understand and focus on the difference between the masses and the enemy and “protect the [Page 976]masses as a heavenly-bestowed duty” (Zhang 1983: 9), thereby promoting the role of courts as instruments of class justice. One dimension of this emerging system of class justice in Ma's hands was that minor criminal offenses not carried out by a class enemy were amenable to the judicial style that he advocated for handling civil cases—that is, a combination of mediation and adjudication.

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