Definition
A consultary response is the formal opinion rendered by a court of law upon a special case submitted to it for legal guidance, without the court adjudicating a live dispute between adversarial parties. The court addresses a discrete legal question — typically one of statutory construction, jurisdictional scope, or legal principle — and issues its reasoned opinion in response. The procedure is consultative rather than adjudicative: no judgment is entered, no party is bound in the traditional sense of res judicata, and no enforcement mechanism attaches directly to the response.
The term is closely associated with civil law systems and with certain historical common law practices under which a court could be asked, by a legislature, a superior tribunal, or a designated authority, to state its opinion on a point of law before or apart from actual litigation.
Common Confusion
Consultary response vs. certified question: Modern American practice uses the certified question procedure, by which a federal court or a court of one state certifies a controlling question of law to another court (typically a state supreme court) for resolution. This is a procedurally formalized, interjurisdictional mechanism with specific rules and binding effect. It is not the same as a consultary response, though both involve a court answering a legal question outside the ordinary posture of adjudication. Researchers should use the correct term when working in each context and should not assume historical consultary response authorities inform modern certified question doctrine.
Consultary response vs. advisory opinion: An advisory opinion in the American constitutional tradition is generally prohibited at the federal level under Article III, which limits judicial power to actual cases and controversies. A consultary response operates outside that framework — it is a feature of systems (including some state courts and civil law jurisdictions) that permit advisory functions. The terms are not interchangeable.
Why It Matters in Research
Researchers encounter this term almost exclusively in historical materials. It surfaces in treatises on civil procedure, comparative law scholarship, and discussions of advisory jurisdiction — not in modern American case reporters or statutory codes, where the concept has largely been displaced or reframed.
The critical research trap: do not conflate the consultary response with the modern American advisory opinion, which has a specific constitutional valence under Article III standing doctrine. The consultary response is an older, broader category that operated in different procedural environments and did not carry the same constitutional constraints. Importing modern advisory opinion doctrine backward onto historical uses of "consultary response" will produce anachronistic analysis.
In English legal history, the consultary response has some kinship with the practice of judges answering questions posed by the House of Lords or by the Crown — a practice that itself has a contested history and should not be treated as a uniform tradition.
For corpus researchers using the Law Mind collection: the term appears in sources discussing civil law procedure and comparative jurisprudence more frequently than in common law primary sources. When you find it in an older treatise, examine the jurisdiction and procedural context carefully before drawing inferences about common law courts.
The absence of this term from most modern legal dictionaries is itself informative. It signals that the procedure it describes either merged into advisory opinion doctrine, was absorbed into statutory reference procedures (such as certified questions), or simply fell out of use as formal court structures crystallized.
Historical Dictionary Support
Both Rapalje & Lawrence and Black's Law Dictionary (2nd ed.) carry identical one-line definitions, each tracing the formulation to Wharton. The agreement between the sources is unremarkable because one is almost certainly copying the other (or both are copying Wharton directly). Neither source expands on the procedural mechanism, the authority empowered to submit a special case, or the binding force — if any — of the response.
What the historical dictionaries miss: they provide no guidance on how the consultary response functioned in practice, which courts exercised this jurisdiction, or how the doctrine varied between civil law and common law systems. A researcher relying solely on these definitions will know what the term is called but not how it operated. Wharton's Law Lexicon is the underlying source and should be consulted directly for any substantive analysis.